Glenn S. Demby in COVID-19 on June 18, 2020
The Situation: You serve on your co-op board, and you just found out that Ann Smith, a shareholder, has tested positive for COVID-19 and is now in self-isolation for 14 days. You immediately report the case to the local health authorities. You post signs and notices in common areas alerting other residents that a building resident has been confirmed as having COVID-19. You tell maintenance staff who had contact with Ann in the past 48 hours that a resident they recently encountered has COVID-19, and you advise them to get tested or go into precautionary self-isolation. Finally, you email Ann’s neighbors to tell them she has COVID-19 and advise them to stay away from her until she safely re-emerges from self-isolation.
The Question: Which of your four actions was illegal?
A.) Reporting Ann’s case to local health officials.
B.) Notifying maintenance staff that an unnamed resident has COVID-19.
C.) Posting signs and notices about somebody in the building having COVID-19.
D.) Telling the neighbors about Ann’s diagnosis and warning them to keep away.
The Answer: D. All your actions were legal except for the emails disclosing Ann’s illness to the neighbors.
The Explanation: The fact that Ann has COVID-19 is what the Americans with Disabilities Act (ADA) and privacy laws refer to as protected health information (PHI). General rule: You can’t disclose PHI without the person’s consent. Exception: You don’t need consent if the disclosure includes only the PHI necessary to control the spread of infection, or if the disclosure doesn’t cast a stigma or subject the person to discrimination.
Your first three actions satisfied the criteria justifying disclosure of Ann’s illness without her consent. But your email to the neighbors crossed the line because it identified Ann by name. You could have put the neighbors on notice by just revealing that a neighbor had COVID-19, without naming names.
Note that you can also get into trouble even without naming names to the extent the neighbors can piece together the information you do provide to identify Ann as the unnamed neighbor your notice refers to. Here’s a sample Notice of a Confirmed Case of COVID-19 that you can post in your building. One more thing: Warning the neighbors to keep away from Ann, while well intentioned, can also be interpreted as exposing her to stigma and discrimination.
Why Answers A, B and C are Legal: A. is legal because notifying health officials of confirmed COVID-19 cases in your community is not only permitted but legally required, even without the person’s consent.
B. is legal because under current Centers for Disease Control (CDC) guidelines, owners are supposed to notify maintenance and other staffers that a person with whom they’ve had close contact within the past 48 hours has COVID-19. This alerts them to their own potential exposure; its other saving grace is that it didn’t name names.
C. is legal for the same reason as B. The CDC is advising owners who become aware of an infection in the community to post signs and notices warning other building residents – but without disclosing names, apartment numbers, addresses, or other information that could be used to identify the person with COVID-19.
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