Phoenix – Attorney General Mark Brnovich released a formal legal opinion today regarding what information state government, including public universities, can release to the public related to positive COVID-19 cases. In short, the Attorney General’s Office (AGO) determined that state government may share non-identifying information regarding employees, students, staff, and others who test positive for COVID-19 with the public to mitigate against the further spread of the virus. The opinion remarked that protecting the public is paramount during times of crisis, and transparency should be the rule rather than the exception.
Rep. Mark Finchem recently posed the following question to the AGO:
Is the government, including but not limited to public universities, prohibited from releasing information to the public concerning individuals who have tested positive for COVID-19, such as information about where they live and who could potentially be at risk? In addition, do those state organizations have a responsibility to notify county and/or state public health officials?
State as an Employer
The AGO determined that when a State employee tests positive for COVID-19, the employer should take all necessary steps to ensure employees or other persons potentially affected are aware that an employee (or other individual) who has been physically present in the office has tested positive for COVID-19. An employer must not disclose information that would reveal an employee’s identity or confidential medical information.
The confidentiality provisions of the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) do not expressly prohibit a State agency from providing its employees or other persons potentially in contact with an employee non-identifying information such as the employee’s assigned state agency or work location, so long as doing so would not reveal the identity of the employee.
The AGO also determined that given the current health emergency, public universities can disclose sufficient information related to positive COVID-19 cases so that potentially affected students, staff, visitors, and others can self-monitor and potentially self-quarantine. At a minimum, universities should disclose information identifying the campus attended by the student and buildings or dormitories frequented by the student during the incubation period and/or while exhibiting symptoms.
Further, warning other students, parents of students, school staff, and others about potential contact with an affected student may be appropriate when those persons’ knowledge is “necessary to protect the health or safety of the student or other individuals.” This approach is consistent with the Centers for Disease Control and Prevention guidelines applicable to universities with positive COVID-19 cases.