Jo-Ellyn Sakowitz Klein Quoted by SC Magazine on Potential Obligations for Employers in Protecting Employee Medical Data

Jo-Ellyn Sakowitz Klein, senior counsel in the health care and life sciences practice at Akin Gump, has been quoted in the SC Magazine article “A safe return to office may mean heavy burden for companies to protect medical data.” The article looks at what employers may have to do to ensure compliance with applicable laws regarding safeguarding employee health information for those returning to their workplaces.

Most organizations, the article says, will not suddenly find themselves subject to regulations dictated by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) just because they may be taking employees’ temperatures and engaging in contact tracing. There are, however, some exceptions.

For an employer that uses a third-party to administer temperature taking or contact tracing, for example, or a security guard employed by the company, Klein said it remains to be seen whether the activity will fall under the domain of HIPAA’s privacy rule providing for “business associates.”

“If a company engages a physician to conduct COVID-19 testing of its employees, the physician may be subject to HIPAA, and, for example, the company’s employees may be asked to sign a HIPAA-compliant authorization form permitting disclosure of their testing results to the employer,” Klein explained.