The Health Service Executive (HSE) has said it has “suspended the practice” of informing employers of their employees’ test results “while we seek guidance from the Data Protection Commissioner”.
In a statement on Tuesday evening, a HSE spokeswoman said it was only in the “most exceptional circumstances” that an employer would be informed of test results before the employee was directly informed.
“This course of action would only be considered where it was considered essential for the public health good in all the circumstances,” the spokeswoman said.
The move follows criticism of the practice by the State's chief medical officer Dr Tony Holohan who described it as "a breach of confidentiality, full stop".
Dr Holohan told the Oireachtas special committee on the Covid-19 response on Tuesday that "employers should not be receiving results for employees".
However, HSE chief executive Paul Reid appeared at odds with Dr Holohan’s view of the practice.
Mr Reid told the committee after the chief medical officer’s testimony that public health officials had discretion in exceptional cases “such as a pandemic” to inform employers ahead of employees about the results of a Covid-19 test and that it was a judgment call for them to make.
Speaking at the Department of Health’s Covid-19 briefing Tuesday evening, Dr Holohan stood over his earlier view, saying that it was important that public health officials ”uphold and are seen to uphold the principle of confidentiality in the way results are handled”.
HSE chief clinical officer Dr Colm Henry said at the same briefing that there were “very exceptional circumstances” where confidentiality could be breached if there was a “greater danger“ to public health from the spreading of the virus and public health officials had to act quickly in a large outbreak such as at a meat plant or nursing home where “speed is of the essence.”
Dr Holohan followed up to say that there was “no policy or provision” in the management of this pandemic that permitted health officials to make information about test results systemically available to staff through their employers.
Minister for Health Simon Harris said in some cases it had been "necessary in the interests of public health" to convey test results directly to managers of meat plants with outbreaks before workers were told to send them home quickly.
Mr Harris confirmed that managers of nursing homes that have been mass-tested for Covid-19 have also been informed of test results “in some cases” ahead of staff due to missing contact information and the volume of results in order for the homes to take prompt action.
Data privacy complaints
The State’s data privacy watchdog asked the HSE for information about such mass testing of workplaces affected by clusters after receiving complaints and queries from workers whose employers received their test results before them.
The Office of the Data Protection Commissioner (DPC) said the administration of the test "would appear to involve" the processing of personal data bringing it under the terms of the sweeping EU data protection law - the General Data Protection Regulation - and that the individual retained the rights to the data.
"From this remove, the DPC cannot see how it can be legitimised that medical test results of this nature would not be communicated in the first instance directly to each individual staff member where by SMS text or phone call," said Graham Doyle, deputy commissioner at the regulator.
“While it may be necessary for the HSE to inform management and employers of positive results after the staff member has received those results in the context of the tracing of close contacts in the aggregate setting, this does not negate the need to communicate with the individual about their personal data.”
State health officials have been mass-testing staff and residents at nursing homes since mid-April and carrying out widespread testing of employees at certain meat processing plants in an attempt to quantify the scale of infection in congregated workplaces and healthcare centres.
Mr Harris said in most cases healthcare workers were contacted “directly to inform them of a positive test result”.
"In some cases due to missing contact information and the volume of results, some results were communicated directly to management to enable the facility to take prompt action," the Minister said in a letter to Roscommon-South Leitrim Independent TD for Denis Naughten.
Mr Harris said that in some cases it had been “necessary in the interests of public health” to convey results of confirmed Covid-19 cases to the management of the plant to ensure workers can be sent home from the factory “for their own health and that of their fellow employees”.
Mr Doyle said that it had received queries and complaints from individuals “who have expressed shock and upset at receiving results via their manager in aggregate settings”.
