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Republicans say they followed public health guidelines, but Democrats remain unsatisfied

Speaker of the House says all members should self-disclose if they contract coronavirus

  • Benjamin Pontz
  • Ed Mahon
State Rep. Brian Sims (D-Philadelphia) speaks on the House floor on May 28, 2020.

 Screenshot from video

State Rep. Brian Sims (D-Philadelphia) speaks on the House floor on May 28, 2020.

Democrats in the Pennsylvania House attempted unsuccessfully to adjourn the chamber until June 8 a day after they learned that a Republican member tested positive for coronavirus more than a week ago. They are also demanding an independent investigation into the GOP leadership’s actions after state Rep. Andrew Lewis (R-Dauphin) learned he had tested positive.

Defending their handling of the matter, Republicans cited privacy laws and public health guidelines. Mike Straub, a spokesman for the House Republican Caucus, said Republican leaders followed guidelines from the Centers for Disease Control and Prevention and the Pennsylvania Department of Health in determining who should be notified that they had potentially been exposed to the coronavirus.

According to an order from Secretary of Health Dr. Rachel Levine, employers are required to notify all employees who had prolonged close contact with someone who tests positive for coronavirus. The directive says employer shall “identify employees that were in close contact (within about 6 feet for about 10 minutes) with a person with a probable or confirmed case of COVID-19 from the period 48 hours before symptom onset to the time at which the patient isolated.”

Screenshot from video

State Rep. Andrew Lewis (R-Dauphin) speaks during a Facebook livestream video on May 27, 2020.

The order also requires employers to “[p]romptly notify employees who were close contacts of any known exposure to COVID-19 at the business premises, consistent with applicable confidentiality laws.”

But the guidelines only require notifying people with whom an infected person has been in close contact, not necessarily those who have been in proximity to those who have been in close contact, Department of Health spokesperson Nate Wardle confirmed. Identifying the contacts of those in proximity to a confirmed case is only required if one of those contacts were to test positive.

Straub also cited privacy considerations under the Health Insurance Portability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA), but employment lawyers say that the House leadership could have done more to inform other lawmakers and staff.

HIPAA applies only to health care entities, so it does not affect employers in most cases, said Eric Athey, co-chair of the labor and employment practice group at the Harrisburg law firm McNees Wallace & Nurick. It is the ADA that applies to employment matters, he said.

The ADA requires that employers keep all medical information about employees confidential, even if that information does not relate to a disability. While a designated employer representative may interview an infected employee to determine if other employees were potentially exposed to coronavirus, the ADA prohibits revealing the identity of the employee who tests positive, said Jeanne Goldberg, an attorney for the Equal Employment Opportunity Commission, in a webinar.

That does not mean, however, that an employer is prohibited from informing all employees at the worksite that an employee has tested positive, said Jill Welch, chair of the employment law practice group at Barley Snyder, a central Pennsylvania law firm.

“[T]he ADA does not prohibit contacting the broader members of the House out of an abundance of caution to notify them that a co-worker is suspected or confirmed to have COVID-19 infection, so long as confidentiality of the person’s name is maintained,” she said in an email.

Some suggested public officials ought to hold themselves to a higher standard of disclosure.

“It appears that House Republicans followed all CDC and Department of Health guidance,” said David La Torre, a communications professional and former spokesperson for Republican governors Tom Ridge and Mark Schweiker, on Twitter. “I simply believe they have a higher duty to be transparent … and transparency has been hard to come by in state government during this pandemic. We’ve seen a significant problem in that area both with Republicans and Democrats. You always err on the side of transparency when you’re a public official, especially in times like this.”

On the House floor Thursday afternoon, Speaker Mike Turzai (R-Allegheny) said that he believes all members should self-disclose if they are tested for coronavirus. And Turzai implied that he was unaware of Rep. Lewis’s diagnosis for some time.

“You continue to refer to leadership,” Turzai said after state Rep. Brian Sims (D-Philadelphia) called on him to resign. “I was not informed.”

Straub, the House GOP Caucus spokesman, said he didn’t know when Turzai was informed that a member had tested positive.

“Lewis’s statement says he notified House Leadership – I don’t know who specifically,” Straub said in an email. “It could mean the staffer in our office who oversees human resources, or any member of our leadership team. When the Speaker was notified, he would not have been provided the name.”

In his Facebook livestream, Rep. Lewis said he called human resources to notify them after learning of his diagnosis. He did not immediately respond to a request for comment seeking more information.

Lewis said he learned he had tested positive on May 20 and that the last day he worked at the Capitol was May 14. House Democrats — particularly those who sit on the State Government Committee, which has met four times this month (though Lewis was not physically present at these meetings) — expressed outrage that they were not notified and say that the Republicans’ response shows a fundamental disregard for their colleagues and their families. Several Democrats called for an independent investigation conducted by the state Attorney General.

“I think the idea that we can take Republicans at their word is laughable,” said state Rep. Malcolm Kenyatta (D-Philadelphia). “We need a thorough independent investigation to ascertain all the facts of who knew what, when did they know it?”

State Rep. Kevin Boyle (D-Philadelphia), the ranking Democrat on the committee, questioned the thoroughness of the contact tracing done after Rep. Lewis learned he had tested positive.

“They have not been detailed or specific as to how they conducted it,” he said.

And Boyle said Republican lawmakers in Harrisburg should have followed the example set by their peers in Washington, D.C., several of whom have publicly disclosed when they were going through COVID-19 testing.

For their part, House Republicans say they met their legal obligations and followed the health guidelines, so, from their perspective, there is nothing else required of them.

“The 14 day isolation from time of exposure expires today,” said Straub, “and we are pleased with the effectiveness of our protocols to protect members and staff.”

House Minority Leader Frank Dermody (D-Allegheny) introduced a House resolution that would require members and staff to wear masks on the floor and in committee sessions, undergo temperature checks, and self-isolate and self-disclose if they contract the coronavirus.

“I think it is apparent that the House should adopt additional safety measures to be able to protect members, staff, and our families back home,” said Dermody.

The resolution was referred to the House Rules Committee for consideration.

Pennsylvania Attorney General Josh Shapiro on Thursday said while he understands the frustration and concern of lawmakers, he didn’t think a criminal investigation was warranted based on an initial review. He said Capitol staff and House members with concerns should contact the independent Chief Clerk of the state House.

The timeline

March 16: The state House passed what leaders called “historic steps,” allowing nearly all members of the chamber to vote remotely.

May 13: The House State Government Committee meets without state Rep. Andrew Lewis (R-Dauphin) present physically.

May 14: Lewis says this was his last day working in the state Capitol. He described the Capitol as “pretty much a ghost town” and said he wore a mask, did not shake any hands, and had few close contacts.

May 18: Lewis said he was tested for COVID-19. The House State Government Committee met the same day without Lewis present.

May 20: Lewis said he was informed that he tested positive for COVID-19. He said he immediately contacted House GOP human resources.

May 27: Lewis sends out a news release, confirming that he tested positive for the coronavirus. House Democratic leaders and several rank-and-file members say they weren’t notified until today.

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