Does The HIPAA Act Prohibit My Boss From Telling Us That A Co-Worker Has Swine Flu?

June 24, 2009 -- Question: How does the HIPAA act affect an employer's responsibility to warn workers who are pregnant or are in the underlying conditions category if they learn other co-workers may potentially have the swine flu?

Answer: Well, the HIPAA law has been the subject of a lot of controversy. There are very strong advocates of its privacy protections and those who are very concerned that it actually gets in the way of helpful communications that really are important from a public health perspective. And there tends to be a lot of misunderstanding about HIPAA as well, and I think this question kind of reflects that.

HIPAA doesn't really obligate employers to warn employees about health care-related issues and it's not really going to prevent employers, who perhaps have information about an employee exposure to H1N1, from communicating appropriately about the health care risk that the employees may have as a consequence of that exposure. Those are really issues that are going to be driven by state law, and there's going to unfortunately be some variation from state to state, so it's important to go ahead and speak with your local employer council.

In big picture terms though, if an employer is told by an employee that they have in fact contracted H1N1, in most states and in most circumstances the employer actually would be able to communicate that information to the rest of the employees so long as the employer was careful not to do so in a way that actually specifically identified the employee at issue. There could be rights of privacy and other issues that would be raised if the employee was directly or indirectly identified.