Should I Tell?

During the past several years, it has become more evident through the questions that Safelink’s consultants have been asked by dental laboratory employees and employers that some dental healthcare workers are among the 3.9 million Americans that the Centers for Disease Control (CDC) estimates to be infected with Hepatitis C.  The questions we’ve received, which are becoming more frequent, come from the employee who wants to know if he/she should inform the employer about their diagnosis and from the employer who wants to know how to respond to the knowledge when an employee discloses this information.  Because of the legal issues, I asked the law firm of Fisher & Phillips to answer the following questions.  I hope this information will be helpful to both employees and employers.

1. If an employee makes an unsolicited disclosure to the employer that he/she has Hepatitis C, is the employer required by law to keep this information confidential?

“Covered employers do not have a duty under the American’s with Disabilities Act (“ADA”) to keep medical information confidential that is obtained in this manner.  The ADA has regulations that require employers to keep information confidential regarding an applicant/employee’s medical condition or history if it is obtained from a medical examination and/or inquiry as permitted by the ADA.  Therefore, if an employee makes an unsolicited disclosure to the employer that he/she has Hepatitis C, and the employer did not learn about the employee’s condition through a medical examination, then the employer is not required to keep the information confidential under the ADA.

However, from a practical standpoint, many employers keep this information confidential to avoid the risk of potential state law claims and to keep a harmonious work environment with respect to co-workers and attempt to limit disclosure to supervisors and managers to inform them of necessary work restrictions or accommodations.  Furthermore, a state may have enacted its own laws that address non-disclosure of medical information.  Employer’s should consult the applicable state laws to ensure compliance.”

2. What measures should employers take in response to learning that an employee has Hepatitis C?  For example, should the employer give the employee cleaning agents for blood to be used if the employee receives a cut at work?

“It is a good practice to follow the same housekeeping and universal precautions for all employees with or without Hepatitis C.  Instead of waiting to find out if an employee has Hepatitis C, employees should be trained and provided with the proper equipment to deal with workplace accidents depending on the nature of the position.”

3. What is the duty of the employer to address the situation with an employee’s co-workers once an employee has told the co-workers that he/she has Hepatitis C?

“There are no federal laws that require employers to advise employees that a co-worker is infected with Hepatitis C.  However, many employers do speak with the employees or have a representative from an organization or the health department provide information on Hepatitis C.  This practice may alleviate or circumvent problems in the workplace that may arise from false beliefs regarding the risk of infection or the nature of the disease.  

Employers should consult state laws and state boards for any additional requirements.”

4. What issues or laws should an employer consider when an employee needs time off for treatment or another accommodation?

“Under the ADA, a covered employer must provide a reasonable accommodation to a qualified person with a disability who cannot perform one or more essential functions of the job if the accommodation would not create an undue hardship for the business.  An accommodation is a modification or adjustment either in the way the work is customarily done or in the work environment itself (e.g., work schedule changes).  Courts have held that the ADA contemplates that every impairment, including Hepatitis C, must be evaluated on a case-by-case basis to determine if an individual is disabled under the ADA.  Therefore, individuals with Hepatitis C may or may not be disabled for purposes of ADA protection.

State laws may also define disability differently and, therefore, while an individual with Hepatitis C may not be disabled under the ADA, he/she may be disabled pursuant to state law.  In addition, states may have stricter confidentiality requirements.  Even if a court would find that an employee is not disabled for ADA or state law purposes, we suggest consulting with an attorney to help make this determination and to select a course of action.  

Further, the employee may be entitled to unpaid leave if the absence is covered under the Family Medical Leave Act (“FMLA”).  In general, covered employers must provide eligible employees with up to 12 weeks of unpaid leave in any 12-month period due to the employee’s own serious health condition that renders the employee unable to perform one or more of the essential functions of the job.”

5. How do the CDC directives come into play?

“Although the directives are non-binding, courts have given weight to the viewpoints of public health authorities, such as the U.S. Public Health Service, the CDC, and the National Institutes of Health.  Therefore, although following CDC guidelines may not be dispositive in a court of law, a court may consider the CDC’s recommendations when determining the reasonableness of the employer’s actions.”

I asked the above question because the CDC published infection control guidelines for dentistry in December 2003.  In the publication, it addresses medical conditions, work-related illness, and work restrictions.  If you haven’t received a copy of that publication contact the CDC to receive a copy.  To learn more about Hepatitis C visit CDC’s Web site at www.cdc.gov/ncidod/diseases/hepatitis/c/fact.htm.

In another issue, I will address public safety issues as they relate to the contact with patients by individuals known to have Hepatitis C and other infectious diseases.  My thanks go to Fisher & Phillips LLC for this information.