What happens if I tell my School that I tested positive for Coronavirus or COVID-19?
A bit ago I overheard a neighbor telling other neighbors that a kid in the “college” X-sports team had come back [from a meet or competition, or maybe from travel, not sure] infected and that they [college X] did nothing about it. I’m very sure that no member of that team is or was infected, but the fact that someone, a complete stranger to that kid or that college, demonized a student suspected of COVID-19 infection, worried me.
The question for the reputation and safety of a student, who may in fact be COVID-19 infected, or may have come back from an infected area, or may have family members infected, matters a lot. The analogy to the usual theme of this blog’s posts seems clear: A student identified with COVID-19 infection, just as one accused of sexual misconduct, faces an uphill battle to revindicate his name and to regain his position in society; not to mention that this student will have to re-learn to be happy after this trauma. (1).
The answer is that on the one hand, telling your school your personal health information puts the school at risk, and it also puts your privacy at risk. Importantly, on the other hand, not telling your school puts the community further at risk. It’s almost a dilemma.
COVID-19 has rocked college education and its business model. (2). The shift from live to virtual took place in an astonishingly fast period. (3). That’s how serious COVID-19 really is. And the one government effort, on point, to guide us through this situation is precisely what a school can or cannot disclose concerning a students’ COVID-19 related health record. This effort came in the form of timely published guidance from the Student Privacy Policy Office of the United States Department of Education. (4).
The Guidance balances out the interest of students in not being either falsely accused or publicly linked to a COVID-19 infection, with the competing concern that the school has to prevent this student, even if just as a suspected carrier, from infecting others. (5). In the example above the guidance rules what “college X” could tell my neighbor, if anything at all, about the infection status of X team members. Boring though it sounds, this guidance actually resolves that basic tension that sometimes makes for good plots—consider Antigone or the Oresteia for examples of resolutions to that tension which some call ‘anagnorisis’.
Specifically, according to this guidance, your college violates your rights if they violate FERPA by making your health information public. However, they do not violate FERPA when you tell them you’re COVID-19 infected and they share that information with “a public health department” as the school has grounds to argue that disclosure (without your permission) responds to the serious risk your infection poses to you or to others on campus. That’s Question 3 in the Guidance. The guidance has a lot more protection in terms of forbidding the identification of your name to your classmates (without your permission). The school has to be really careful to not identify you. It can only say, for example, that “a student tested positive” but nothing else to identify you by. That’s Question 4 in the Guidance.
So, if you tell your school, they will tell their lawyers and doctors using your name. If they tell the community at large using your name or some characteristics that identify you, like, for example, “the top-rated player in Team X” then you sue them for putting you in the same hate-filled place that respondents of sexual misconduct live in every day.
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather, suggestions on how to protect you or your family’s college students in this Coronavirus or COVID-19 national emergency. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
1. There are of course several distinguishing factors between a student infected or suspected of COVID-19 infection and one accused or suspected of sexual misconduct. The COVID-19 infected student will probably not be considered responsible for the infection but will be held accountable for the failure to prevent contagion. In contrast, the student accused of sexual misconduct immediately enters an area of permanent shame which exists, in part rightfully, because of the long history of female sexual abuse, and in part, unfortunately, because of the more recent and rather radicalized forms of activism about it. See, e.g, https://www.studentmisconduct.com/news/why-do-even-informal-and-confidential-complaints-of-student-misconduct-under-title-ix-snowball-into-permanent-shaming-of-the-exonerated-men-responding-to-them
2. “The number of colleges and universities canceling in-person classes has escalated in recent days, expanding beyond the West Coast and the New York City region. By Tuesday afternoon, a flurry of colleges across the country had announced similar moves, including American University in Washington D.C., Syracuse University in upstate New York, the University of Maryland system and Rice University in Houston.” Sarah Mervosh, Colleges and Universities Cancel Classes and Move Online Amid Coronavirus Fears, The New York Times, March 10, 2020, available here: https://www.nytimes.com/2020/03/10/us/coronavirus-closings.html
3. "To ask someone to go from a land based course to an online course without any previous online teaching experience is a huge ask and it's not something that can be done overnight," Costa says. "And we're trying to do it overnight." The Coronavirus Outbreak And The Challenges Of Online-Only Classes. NPR, March 13, 2020 available at: https://www.npr.org/2020/03/13/814974088/the-coronavirus-outbreak-and-the-challenges-of-online-only-classes
4. The DOE’s “Guidance” from the Student Privacy Policy Office is available here: https://studentprivacy.ed.gov/sites/default/files/resource_document/file/FERPA%20and%20Coronavirus%20Frequently%20Asked%20Questions_0.pdf If you want to learn about the distinction between DOE “guidance” and DOE “rules” check this out: https://www.studentmisconduct.com/news/which-standard-of-proof-do-schools-use-in-title-ix-sexual-misconduct-proceedings-and-did-devos-change-that
5. We have discussed why a school will disclose things normally assumed confidential, like for example a male respondent to sexual misconduct’s use of controlled medication here, https://www.studentmisconduct.com/news/jauregui-law-firm-quora-answer-during-a-sexual-misconduct-investigation-and-adjudication-the-school-will-likely-publish-the-respondents-use-of-controlled-medication-unless-he-lawyers-up and suggested that to avoid that the respondent needs to lawyer-up.