On July 27, 2023, the Wisconsin Court of Appeals held in Mosley v. Oakwood Lutheran Senior Ministries that verbal disclosure of an employee’s COVID-19 status does not support a violation of Wisconsin healthcare record disclosure laws or a cause of action for invasion of privacy. The court’s decision dismissed the employee’s claims against her employer and addressed the importance of distinguishing what constitutes a breach of privacy during a public health crisis.

Quick Hits

• Verbal disclosure of an employee’s COVID-19 status did not support a violation of Wisconsin’s healthcare record disclosure laws or an invasion of privacy claim, the Wisconsin Court of Appeals ruled.
• The employee’s claim was fatally flawed because the private matter made public at issue in the case would not be “highly offensive to a reasonable person of ordinary sensibilities,” the court said.
• The court also found that verbal communication, absent transfer of any record, does not violate the state’s healthcare record disclosure law.

Background

In Oakwood Lutheran Senior Ministries, the employee worked in food services during the early stages of the COVID-19 pandemic. She reported to work in June 2020 and underwent the campus’s COVID-19 screening process. As a part of the procedure, she stated that she had experienced COVID-19 symptoms in response to the employer’s screening questions. As a result, her supervisor denied her entry to the workplace and instructed her to undergo a COVID-19 test. The test confirmed that she had contracted the virus. The employee’s supervisor subsequently received a copy of the test results.

The workplace announced an employee’s positive COVID-19 case through a memorandum but did not identify the employee’s name. Following the memo’s release, the employee received a social media text message from a coworker indicating that another supervisor shared information about her COVID-19 status. After she returned to work, other employees inquired about her experience with COVID-19. The employee alleged that her supervisor likely disclosed her test result to other employees without her authorization.

The employee subsequently filed a lawsuit against her employer and raised claims for violations of Wis. Stat. § 146.82, pertaining to the release and redisclosure of patient healthcare records without proper authorization, and an invasion of privacy claim.

The Court’s Analysis

The Wisconsin Court of Appeals affirmed the circuit court’s decision to grant the employer’s motion to dismiss all claims.

The court found that the employee failed to state a claim for invasion of privacy. The employee’s claim was fatally flawed because the private matter made public at issue in the case would not be be “highly offensive to a reasonable person of ordinary sensibilities.” Under the circumstances of the pandemic, “a positive COVID-19 test result [was not] the type of information that would prompt a reasonable person to become “seriously aggrieved” by its disclosure, given the highly contagious nature of COVID-19, its transmission through everyday interactions, and the wide-spread voluntary disclosure of positive test results,” the court wrote. A claim under Wis. Stat. § 995.50(2)(am)3, providing a cause of action for invasion of privacy, requires that the disclosed information be “highly offensive,” not merely “offensive.”

The court also concluded that the employee’s claim for release or redisclosure of patient healthcare records failed. The court relied on the “plain language” of Section 146.82 to dismiss the employee’s claim under that statute. The statute’s language requires actions supporting a claim to include release or redisclosure of “patient health care records.” The employee did not allege that either supervisor “released or redisclosed an actual ‘record.’” Instead, the employee alleged that her COVID-19 test result was verbally communicated to other employees. The court concluded that verbal communication, absent transfer of any record, does not violate Section 146.82.

Takeaways

The decision in Oakwood Lutheran Ministries provides employers guidance under Wisconsin law when employee information concerning a communicable disease is released to others in the workforce. The court’s rationale concerning communication that may be highly offensive to a reasonable person may be instructive when an employer entertains disclosure of certain information to protect other employees. The court’s decision also confirms that verbal communications, absent transmission of actual records, does not provide grounds for violation of Section 146.82.