[ Tuesday, May 12, 2020 ]
Jeff [2:10 PM]
In the right circumstances, yes. The Faegere Drinker health law group has a good explainer here
, but the key elements are:
- Patient gives consent. At the time of service, health care providers can obtain written consent from the patient authorizing the release of COVID-19 testing results directly to his or her employer. Unlike other treatment situations, a health care provider may even condition the performance of an employee test on the employee’s provision of an authorization (i.e., the provider may refuse to perform the exam unless the patient executes a valid authorization). See 45 CFR § 164.508(b)(4)(iii).
- Testing falls under HIPAA’s workplace medical surveillance exception. Health care providers may disclose health screening results directly to an individual’s employer when the service was provided at the employer’s request, and the employer needs the information to comply with legal obligations related to workplace health monitoring. The health care provider must provide the individual with written notice that the information will be disclosed to his employer at the time of the service and must limit the disclosure to the findings regarding the medical surveillance at issue. See 45 CFR 164.512(b)(1)(v).
- Testing paid for by employer. If the employer subsidizes COVID-19 testing for its employees, the employer may be entitled to information regarding the specific employees the provider tested and when the testing was conducted. However, this would not entitle the employer to the results of the testing.
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