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COVID-19 controversy at Pa. Capitol calls into question employer obligations in telling workers about positive test

What are the rights of business owners and what are your rights when it comes to medical privacy laws?

HARRISBURG, Pa. — Debate centering around the Pennsylvania Republican State Representative who recently tested positive for COVID-19, and whether or not House Democrats should have been informed of the test result, stretched into Thursday evening at the State Capitol.

House Leader Bryan Cutler, a Lancaster County Representative, said earlier in a statement the decision not to inform anyone of Rep. Andrew Lewis' positive COVID-19 test except those who may have been in close proximity to him in the days before he went on self-isolation followed all Department of Health protocol and medical privacy laws.

"We would be breaking the law if we announced anything about his medical status, or even information that could lead to him being identified," Cutler's spokesperson, Mike Straub, said in a statement. 

Philadelphia State Representative Brian Sims, who one day earlier made national headlines with an 11-minute profanity-laced Facebook Live saying, among other things, Speaker of the House Mike Turzai should resign, said it was Democrats public health right to learn someone tested positive.

"We don't want to know the name of the person who tested positive. We don't want to know who's been quarantined. But we have a public health right to protect our family, our neighbors, our constituents and our staffs," Sims said on the House floor Thursday.

Turzai chimed in as well, saying he was not aware of Rep. Lewis' positive test, and suggested he would publicly disclose a COVID-19 positive test immediately if he tested positive, and implored other legislators to do so as well.

The Pennsylvania Department of Health policy on worker safety seems to suggest House Republicans followed all proper protocols. Section A.3b says a business should add proper guidelines on how to deal with a positive COVID-19 test in the workplace, adding they should: 

b. identify employees that were in close contact (within about 6 feet for about 10 minutes) with a person with a probable or confirmed case of COVID-19 from the period 48 hours before symptom onset to the time at which the patient isolated;

Later down, in subsection iii., the guidelines read:

iii. Promptly notify employees who were close contacts of any known exposure to COVID-19 at the business premises, consistent with applicable confidentiality laws;

Nowhere in the Pa. Department of Health's guidelines does it say employers must tell all employees when someone in the building tests positive.

However, according to Susan Huntington, a medical law expert at Day Pitney LLP in Hartford, Connecticut, employers would not be legally protected in keeping that information private.

"Most employers are disclosing that someone in the work environment tested positive, or is experiencing symptoms, if that disclosure can be made with that person not being personally identified," Huntington said.

As long as a person is not identified, employers are allowed to tell the workplace of a positive test within the building.

"It's also a public health consideration," Huntington said. 

She adds not all workplaces are covered under the Health Insurance Portability and Accountability Act (HIPAA), which provides medical privacy to patients and their health care providers.

"Once an employee tells something to an employer, it's not private anymore," Huntington said. "An employee is giving consent once they tell you."