The sudden impact of COVID-19 is being felt by all New Zealanders. The fast moving nature of the emergency means agencies are having to respond quickly to ensure everyone is doing what they can to protect their communities and themselves. 

It is most acutely a concern for health professionals who are at the frontline of healthcare. 

Covid-19 is a notifiable disease requiring a coordinated public health response and you will have obligations to report cases that you might encounter in your practice. The Health Act 1956 sets out these obligations to notify the medical officer of health in the local DHB’s public health unit. 

But what do you tell employees and colleagues if someone you work with might have the virus? Our office has received many enquiries recently about the issue of employee confidentiality and disclosure. 

What does the Privacy Act say? 

The Privacy Act permits employers to collect information about their employees’ health status if it is needed for a lawful purpose such as health and safety. 

Principle 3 requires the employer to reasonably inform the employee why the information is being collected, who will receive that information and whether providing the information is voluntary or required by law. 

Employees can be encouraged to disclose to their employer if they fear they may have a communicable disease that could affect others in the workplace. 

This is a reasonable expectation which might be set out in a workplace policy. To encourage employees to share this information, employers can undertake to keep the information confidential and not to identify the employee unless strictly necessary for the health and safety of others. 

Employers should discuss with any quarantining staff members how they want to deal with any announcement to colleagues. Employers can also reassure employees they will not be disadvantaged by any disclosure about their health status, nor lose any entitlements. 

But in a small practice, maintaining confidence about an employee’s identity is not very practical, so it’s best to be realistic and use common sense.  

Can I tell my employees about another employee? 

Under the Privacy Act, there is a general obligation not to use or disclose personal information, unless an exception applies. 

There are exceptions that permit the use or disclosure of personal information when getting the individual’s authorisation is not desirable or practical. One of these is where you believe the use or disclosure is necessary in order to prevent or lessen the risk of a serious threat to someone’s safety, wellbeing or health. 

Under this exception, when dealing with an employee who may have contracted a highly contagious disease, it may be prudent to advise other employees so they can monitor themselves for possible symptoms and, if needed, isolate themselves from the workplace and take steps to protect themselves. 

To work out whether something qualifies as a ‘serious threat’ you should consider:

• The likelihood of the threat being realised;
• The severity of the consequences if the threat is realised; and
• The time at which the threat may be realised. 

A confirmed case of Covid-19 ticks all these boxes. A possible case of the virus is less clear cut. Remember that the starting point, from a privacy perspective, is that an employee has a right to expect that their health information will be kept confidential from other employees. 

An employer needs to apply discretion in deciding whether to disclose the nature of the illness, injury or condition. 

In the circumstances of a possible or confirmed Covid-19 case, an employer can legitimately collect information to address a potential risk or threat to other employees. 

But disclosing that information requires sensitivity and consideration. You’ll need to think carefully about whether it will make a difference to identify an employee who might be the cause of the exposure. 

Of course, this might already be obvious to all in a small medical practice. 

Is it okay to tell other employees that a colleague is sick? 

There are often very good reasons for telling other staff and work colleagues if a person is sick and won’t be at work. Staff will often need to know if someone will be absent from work or not able to do their job. 

Many workplace policies will state that if a person is sick or on leave, the employer will tell staff. This is up to individual employers or workplaces.

This article first appeared in the March edition of NZ Doctor. This is an amended updated version of that article.

Image credit: My Grand Prairie Now

health, Covid-19