Do businesses have to disclose positive tests?

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With businesses reopening and more people testing positive for the novel coronavirus or coming down with COVID-19, citizens want to know where to avoid, if not who. So, do businesses have to tell you, as a customer, that someone who tested positive for SARS-CoV-2, or was diagnosed with COVID-19, has been traced by public health officers to the business’ storefront or office? Not according to Nassau County Emergency Management.

Nassau County’s EM was asked this question on Facebook Tuesday, April 7: “For those individuals who tested positive, if the contact tracing process confirmed that they have been in a grocery store how does that grocery store advise other customers? I have not seen any notifications from grocery stores and assume these individuals may have visited one. Thanks.” Nassau County EM replied: “Once the grocery
store has been notified, it is up to their own policies and procedures. There is typically a decontamination process, however as far as notifying customers that would be a question for the specific store.”

The question and answer came in response to a list of FAQs posted by EM on Tuesday, April 7, which follows:

“We wanted to take a moment to address some of the most frequently asked questions we receive via social media. If you have additional questions please call the EOC’s information line at 904-548-0900 or message EOC staff through the NassauEM Facebook page.

“COVID-19 Social Media FAQ

“1. What is the process for contact tracing once an individual tests positive? Are stores notified?

– When an individual tests positive, the Florida Department of Health begins a thorough process of case investigation and contact tracing. The patient will provide names of individuals and business they have come in contact with over the last 14 days. The D.O.H. then contacts those entities to alert them to the possible exposure to COVID-19. Business follow their own protocol regarding notification and decontamination. For additional information please contact Florida Department of Health-Nassau at 866-779-6121.

“The federal Equal Employment Opportunity department posted a pre-recorded webinar addressing questions arising under any of the Federal Equal Employment Opportunity Laws and the COVID-19 pandemic. The video can be seen on YouTube. A transcript of the March 27 webinar says, in part, “the COVID-19 pandemic permits an employer to take the temperature of employees who are coming into the workplace (and) may ask all employees who will be physically entering the workplace if they have COVID-19, or symptoms associated with COVID-19, or ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, cough, sore throat, fever, chills, and shortness of breath.

“An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to health or safety.

“Next question: What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature, or refuses to answer questions about whether he has COVID-19, or symptoms associated with COVID-19, or has been tested for COVID-19? “… Employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. As we will discuss shortly, the ADA prohibits such broad disclosures.

“The reason these types of questions are permissible now is because this type of cough is one of the symptoms associated with COVID-19. 

“(Employers can ask) whether an individual has had contact with anyone who the employee knows has been diagnosed with COVID-19, or who may have symptoms associated with the disease. … The Genetic Information Nondiscrimination Act -- GINA for short -- prohibits employers from asking employees medical questions about family members. 

“Suppose a manager learns and confirms that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do? The ADA of course requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. … The question is really what information to report: is it the fact that an employee -- unnamed -- has symptoms of COVID-19, or a diagnosis, or is it the identity of that employee? … Employers should make every effort to limit the number of people who get to know the name of the employee. … ADA confidentiality does not prevent an employee from communicating to his supervisor about a co-worker’s symptoms. In other words, it is not an ADA confidentiality violation for this employee to inform his supervisor about a co-worker’s symptoms. After learning about this situation, the supervisor should contact appropriate management officials to report this information and discuss next steps.”

An ‘ordinary duty of care’

Asked about the duty of a business owner to disclose that someone was exposed to or infected with coronavirus at their business, attorney Jane Muir, who recently became the president-elect of the Dade County Bar Association, said: “When someone is injured at work, then it would be a worker’s comp issue if someone got sick or died. Worker’s compensation damages are capped at $200,000, unless the employer was grossly negligent or ‘reckless, willful or wanton.’ If their employer withheld the information that it might expose them, that might constitute a way to overcome the worker’s compensation cap on damages. This would require someone to be very ill or to die from coronavirus for them to be entitled to damages in excess of the worker’s compensation cap.”

In response to a question about any obligation – legally or ethically – of a private business to publicly disclose to their customers that someone – an employee or known customer – was diagnosed and what they are doing about it, or did about it, Muir said, “ordinary duty of care” would apply, then explained what that term means.

“‘What a reasonably prudent person would do under the circumstances.’ The problem is that is arguable. So for instance, if an employer KNOWS FOR SURE that someone that works in their place of business tested positive for coronavirus and did not send everyone home to self quarantine and wipe the office down with disinfectant, that might be a breach of the duty of care, BUT then someone would
have to become seriously ill or die, and that damage would have to be traceable back to the office.”

Adam Thoresen, a staff attorney with Jacksonville Legal Aid, offered this in response to the same questions: “In my opinion, I don’t think there is any specific law in place either nationally, or locally, that requires a business to notify other consumers that someone known to have tested positive for COVID has been to one of their stores/offices.

“The Governor’s executive orders do require that ‘essential’ businesses ‘shall’ have ‘reasonable’ measures in place to ensure ‘sanitation and cleanliness of premises and items that may come into contact with employees and the public’ and
that they must also take ‘reasonable’ steps to ensure CDC social distancing guidelines are followed.

“If a business were not to follow ‘reasonable’ measures and someone were to get sick, then, potentially, there could be civil liability in the future. I fully anticipate those kinds of lawsuits down the line. They would probably look similar to garden variety negligence suits.  Certain cruise lines have already been sued, or have active Attorney General investigations, for COVID related failures to disclose information to consumers.

“Many businesses, such as Publix, have made it public when employees have tested positive and have identified the ‘affected’ stores where the employees worked.

“Certain public lodging establishments do have requirements, (especially) in Nassau County, to give information about guests to the Nassau County Health Department.

“Of course, employers have HIPAA and other privacy and civil rights laws to contend with so they are understandably concerned about revealing certain information, especially with respect to employees.”

#NassauSafe

After an attempt last week to launch “#NassauSafe” as a “collaborative effort between Nassau County Emergency Management, AICVB, the Nassau County Chamber of Commerce, and Fernandina Beach Main Street,” Gil Langley, the president and CEO of the Amelia Island Convention and Visitors Bureau wrote Monday that the program was being “paused” and for the press release to be held, saying “I believe the thought was if implemented, it should be a private sector effort.” Langley added that Emergency Management Director Greg Foster “can speak to this and other initiatives.”

In a second email after the press release was sent, Langley wrote: “If the program doesn’t get traction, the BOCC will consider making the mask mandatory – similar to Leon County.”

Asked what the issue was with the press release, Foster wrote in an email that it was with “Nassau County Emergency Management being involved with this program. The program is continuing with the Chamber of Commerce taking the lead. We do want the pledge of the companies to take the appropriate actions to protect their workers and the public, and the chamber is in a position to most effectively make that happen. Thank you for your inquiry and for being a partner with NCEM.”

Foster said he pulled back on his role because of issues with manpower.

“Due to the number of business(es) present in Nassau County (in excess of 3,000) and lack of enough volunteers, man power issues would prohibit a quick completion of the project. The Chamber of Commerce has the direct contact with the businesses, providing them with a more efficient coverage of the local commercial establishments,” Foster wrote.

Community spread

Gov. Ron DeSantis issued Executive Order 20-91 (Essential Services and Activities During COVID-19 Emergency) on April 1 that states all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.”

“For guidance in determining what is considered an essential business you may visit www.cisa.gov or see a list here: https://www.floridadisaster.org/€@Š. Please watch Sheriff Bill Leeper’s Public Service Announcement “Words Have Meaning” on NassauEM Facebook page, The Nassau County Sheriff’s Office Facebook page, or on YouTube (https://www.youtube.com/watch?v=8m1zmIw0T-o),” according to another post.

After a partial lifting of DeSantis’ restrictions in May, bars, which had not been deemed “essential,” and restaurants, which had been allowed to stay open for take out, began to fill up again as the public emerged from isolation to travel, shop, and enjoy reopened recreational opportunities such as county beaches. On-premise consumption of alcohol in bars was restricted again on June 26.

According to federal guidelines released as part of its “Reopening America” plan, “Indicators and thresholds for community transmission, public health preparedness, and health system capacity to absorb additional COVID patients will use local, state and regional data to support decisions about scaling mitigation measures up and down.”

Last week, Dr. Eugenia Ngo-Seidel, the director of FDOH-Nassau County, told the Nassau County Board of County Commissioners that the number of cases reported is not just going up because of more testing, the percentage of positive test results has also gone up. There are also younger ages involved. “Some of these cases were due to social gatherings, versus in the past we found more related to work settings and family household spread,” Ngo-Seidel said.

She also noted Florida’s Surgeon General, Scott Rivkees, issued a public health advisory June 20 on what individuals can do: “He emphasized the use of cloth masks by everyone in any setting where social and physical distancing is not possible.”

The number of officially counted positive COVID-19 tests in Nassau County has more than doubled in the past three weeks, now totaling 182, with 174 residents and 8 non-residents. “As of this date, 90 residents have been released from isolation,” according to a Tuesday morning post on the Emergency Management page on Facebook.

pegdavis@fbnewsleader.com