Over the course of the pandemic, health care workers have borne a large brunt of COVID-19’s impact. As they become infected, or suspicious for infection, questions arise for their employers about if and how to disclose an employee’s illness to patients exposed to these employees. The question is particularly challenging to answer for health care providers that routinely have multiple brief contacts with patients, such as laboratory patient service centers, home health nurses and walk-in medical clinics.

Health care providers initially had little to no specific public health guidance on whether, when and how health care providers should tell patients they were treated by a person who has, or likely has, COVID-19. But the Centers for Disease Control and Prevention has since issued guidance to help health care providers navigate these issues. Even so, questions and uncertainty remain when applying these guidelines in various settings.

This piece shares suggested best practices on making such disclosures. Of course, there is no one-size-fits-all approach to addressing the relevant issues. The nature, scale and geographic scope of your practice will present practical concerns and limitations that must be considered. A non-exhaustive list of suggestions is discussed here.

The Disclosure Decision Tree

You operate a walk-in health care clinic or stand-alone primary care physician practice. Your triage nurse starts to have symptoms and later tests positive for coronavirus. She saw a high volume of patients over the last few weeks before isolating due to suspicious symptoms. Should you report this to the patients who were sufficiently exposed to the nurse? What is a reasonable scope for the disclosure, and what can you say to the patients?

The specific high-level questions presented by this hypothetical are:

  1. Did patients come in contact with the health care worker during a period of time when the worker was likely infectious?
  2. Was the patient contact with the infected worker significant enough to potentially transmit the virus and, thus, warrant disclosure?
  3. Can the disclosure be made in time for the exposed patients to take meaningful countermeasures against community spread or to protect their health?

Was the worker infectious at the time of contact with the patient?

The CDC provides the following guidelines to decide if patients, visitors or other health care workers may have been exposed to an infected health care provider. With regard to the infection window, the guidance notes:

  • If the provider had COVID-19 symptoms, the provider is considered potentially infectious starting two days before symptoms first appeared until the employee meets criteria to stop transmission-based precautions or home isolation.
  • If the provider did not have symptoms, collecting information about when the provider may have been exposed could help inform the period when they were infectious.
    • If an exposure is identified, the employee should be considered potentially infectious starting two days after the exposure until criteria to stop transmission-based precautions or home isolation are met.
    • If the date of exposure cannot be identified, the CDC states that it is reasonable to use a cutoff of two days before the specimen testing positive for COVID-19 was collected as the starting point. Although the infectious period is generally considered to be 10 days after the onset of infection, it may be impractical and inefficient to elicit contacts for the 10-day period before the specimen tested positive.

The CDC recommends that contact tracing should be performed for anyone who had prolonged close contact with the infected person during these time periods. Notwithstanding the uncertainty on when an infected person can pass the virus to another, these guidelines strongly suggest infection concerns are paramount within 48 hours of symptom onset (or for asymptomatic patients, within 48 hours of exposure or collection of the specimen which yielded the positive test result). This would counsel disclosing the employee’s condition only to patients with whom the employee had prolonged, close contact starting two days before symptom onset, date of exposure or collection of positive test result, as applicable. Using the 48-hour standard will tend to reduce the number of disclosures that need to be made, and, thus, may be better suited to entities with high patient volume and correspondingly shorter patient-provider interactions. Other World Health Organization and CDC guidelines similarly suggest that exposure to infected persons within 48 hours of symptom onset is the critical period for patient surveillance, tracking and management.

Was the contact with the infected health care worker substantial enough?

Public health guidelines on when contact with an infected person creates a significant risk of virus transmission focus on whether there was “close contact” with the infected person. “Close contact” is now defined by the CDC as being:

within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection) until the time the patient is isolated. The World Health Organization (WHO) additionally includes persons with direct physical contact with a probable or confirmed case, direct care for a patient with probable or confirmed COVID-19 disease without using proper personal protective equipment, and other situations as indicated by local risk assessments.

In other words, a single brief (less than 15 minutes total) patient exposure to an infected worker likely does not warrant disclosure, absent extenuating circumstances. CDC guidance suggests factors influencing this analysis would also include whether the:

  • Health care worker was wearing PPE as recommended for the relevant health care setting
  • Interaction involved manipulation or prolonged close contact with the patient’s eyes, nose or mouth, as opposed to simple tasks such as a blood pressure check

Minimizing the length of patient contact to any one health care worker will help mitigate transmission and lessen the likelihood that widescale patient disclosure may be warranted.

Can the disclosure be made in time to influence patient behavior?

Finally, a provider should consider whether, as a practical matter, the disclosure can be made to exposed patients within a meaningful time of employee “diagnosis.” This generally translates to within 12-13 days of the infected employee testing positive or showing symptoms. Consensus remains that incubation and symptom onset will occur within 2-14 days of infection. After the incubation window closes, the disclosure becomes less helpful because:

  1. The exposed patient, if infected, likely will have started showing symptoms and, thus, have experienced an independent reason to seek appropriate medical care and to take countermeasures against community spread.
  2. The period during which the patient may be unknowingly infectious to others has ended or is near its end, so any countermeasures the patient may take are less likely to reduce community spread.

If the disclosure can be made in this 12-13-day window, patients will have a chance to follow applicable guidance on symptom self-monitoring to protect their own health and to avoid spreading the virus to others.

What Should the Disclosure Look Like?

HIPAA does not apply to an employer’s handling of its employees’ health information, but general confidentiality concerns controlling the employer-employee relationship – including those imposed by the Americans with Disabilities Act – dictate that the disclosure should not include the name, title, job function, gender or other information that would allow the patient receiving the disclosure to identify the employee at issue. Guidance on complying with the ADA in the context of a pandemic can be found on the Equal Employment Opportunity Commission’s website.

The CDC guidance further notes that contact tracing should be carried out in a way that protects the confidentiality of affected individuals and is consistent with applicable laws and regulations.

Next, unless the health care provider has a clear physician-patient relationship with the recipient of the disclosure, it should not provide direct medical guidance or advice to the patient. Rather, it should identify the date of the exposure and the known status of the employee (test positive, presumptively positive, symptomatic, etc.). It should then direct the patient to standard public health guidance on how the patient should respond, while recommending follow-up with a physician for answers to any questions. Finally, the disclosure should include any language or directives required by state or local health departments (more on this below).

Other Issues

Before making a disclosure, health care providers may also be well served to consult with local and state health departments with jurisdiction over the area where the employee resides. The CDC guidance suggests that health care facilities create a process for telling the health department about known or suspected cases of COVID-19. They should also consult with local public health authorities to make a plan for how exposures in a health care facility will be investigated and contact tracing will be performed. The CDC guidance says the plan should address the following:

  • Who is responsible for identifying contacts and notifying potentially exposed individuals?
  • How will such notifications occur?
  • What actions and follow-up are recommended for those who were exposed?

Many state and local health departments are running active COVID-19 surveillance and investigation operations. It is possible that the relevant health department already will have received information on the employee’s condition and have notified those who were exposed. The health department may even be able to tell you that the employee has actually turned out to be test-negative for coronavirus (an actual outcome for one firm client), thus relieving the employer from any perceived need to disclose.

It is also possible that local health departments will have developed a protocol for providers to follow when making such a disclosure. Moreover, some health departments have asked for copies of the disclosure to add to their respective call center databases to assist with patient management and guidance if they were to call.

Finally, although there are concerns with increasing the provider’s exposure to lawsuits by making such a disclosure, there is a countervailing concern about increased liability for failing to disclose. And as the disease spreads, claims against a health care provider by a patient for exposure to coronavirus injuries become more challenging due to the difficulty in proving that the origin of the patient’s infection was the provider’s employee.

Conclusion

Employees of health care providers are now being routinely diagnosed with COVID-19. Many health care employers will feel a special urgency to reach out to their patients who were exposed to coronavirus in their facilities to preserve the health of their patients and the community they serve. While uncertainty remains, the best practices above, which are based largely on CDC directives and our experiences to date, provide a reasonable methodology for making such disclosures.