The COVID-19 test came back positive. The result was a shock, not because it was positive but because the 55-year-old CEO had no symptoms and had only taken the test to comply with contact-tracing efforts. He would quarantine, of course, but could otherwise run the company and continue his duties uninterrupted. The only question now was: Does the company have an obligation to disclose the result or not?
Despite a fiduciary duty to shareholders, the issue of a board’s obligations regarding disclosure of a CEO’s medical condition has always been a bit murky, experts say, particularly because the protection of a person’s health privacy is a serious issue. Think of the debate that raged about a decade ago when Apple founder Steve Jobs took an unexplained medical leave of absence. Recently, disclosure has roared back to the forefront as a result of the pandemic in general, and more specifically because of the United States president’s positive test for COVID-19.
So far, when it comes to COVID-19, boards have been inconsistent with regards to disclosure. Some have opted to immediately disclose positive tests, putting the CEOs on medical leave and enacting a temporary succession plan. Others, however, have chosen to disclose only after the CEO recovered. At the opposite end of the spectrum, it’s probably safe to assume that some positive tests haven’t been disclosed.
Since the severity of COVID-19 can range from asymptomatic to fatal, the decision to disclose “becomes a tightrope walk between unnecessarily destabilizing the business and hiding material information that needs to be shared,” says Jane Stevenson, Korn Ferry’s global leader for CEO succession and vice chairman of the firm’s Board and CEO Services practice. Put another way, disclosing a positive COVID-19 test could send investors and employees into a panic, potentially erasing millions of dollars in market value, without the CEO ever becoming seriously sick. Conversely, in an environment where purpose and health and safety are paramount, not disclosing a positive test, even after recovering, could be taken by investors and employees as a lack of transparency and adversely impact the stock price as well.
Officially, US Securities and Exchange Commission regulations require disclosure for public companies when the illness becomes significant enough to be material, meaning it has the potential to have an adverse impact on the business. But what one organization considers material another may not, says Alan Guarino, vice chairman of Korn Ferry’s Board and CEO Services practice. “It’s not black-and-white,” he says. Moreover, what information the disclosure needs to contain is also open to interpretation. Instead of citing a particular illness by name, for instance, boards can choose to simply disclose, as Apple initially did, that the CEO is taking a medical leave of absence or has an unspecified medical condition. While that approach helps protect privacy, it could also backfire by creating conditions for rumor and speculation that could cause more damage than just saying that the CEO has contracted the coronavirus.
In fact, says Guarino, as leaders of public companies, CEOs are public figures in their own right and, as such, are considered akin to celebrities, athletes, and politicians in terms of their expectation of privacy. For Fortune 100 companies in particular, Guarino says, “The magnitude of the company’s impact on individuals and institutions makes the CEO a ‘quasi’ public figure.”
To be sure, from a communications perspective, experts advise boards to err on the side of transparency. Part of the reason for that, says Richard Marshall, global managing director of Korn Ferry’s Corporate Communications Center of Expertise, is because the potential for a CEO’s illness to leak out internally and via social media channels puts the company at risk and on defense. "Leaks are likely and can create misinformation that can be disruptive to the business," Marshall says. "Getting out in front of it and having a clear and coordinated message will give you more control over the narrative and offset some of the risk."