The pandemic brought about new technology meant to help employers with symptom tracking, contact tracing, proximity beaconing for social distancing, and thermal imaging for temperature checking. If this is a technology your workplace is interested in, be aware of precautions to take.
Privacy is the main issue. Many states have passed fairly aggressive cybersecurity laws, and maintaining information about an employee’s biometrics or medical information may not be allowable without employee consent. In other states, it may require monitoring the information so it is not breached by outside parties, and if it is, the employee is notified. Finally, any app the employer uses may not only be visible to the employer, but the app’s vendor as well, and that may not be acceptable to the employee.
The ADA is clear that if you have medical information, such as temperature records or test results for individuals, you must not share anything related to the identity of the employee with others, so a breach could also be an ADA violation.
A secondary issue is exposure records under OSHA. OSHA has had a regulation in place for years that requires an employer to keep any exposure record – when employees are exposed to harmful agents in the atmosphere – for 30 years. Of course, a pandemic wasn’t what OSHA had in mind when they included the regulation, and no doubt they were concerned about the long term effects of harmful chemicals; nevertheless, the plain language of the regulation would give an employer pause if it maintained records of exposure to the outbreak.
If you are considering using this technology, here are some things to keep in mind and questions to ask:
- Decide if you really need to know what you will learn from the software. For example, you may learn an employee was within 2 feet of another employee for 20 minutes. What are you going to do with this information?
- Learn how employees would feel about this. Would they feel safer, or would they find it unduly intrusive? If you have good employees who feel they are not being well treated, they may leave when you need them most.
- Research the vendor carefully. What do you know about the vendor, and how they will both use and protect the information? Do they have examples and other customers who are willing to talk to you about how it is working? Have you asked the right questions of those other customers?
- Maintain the information responsibly. It is important not to disclose individual information to other employees and even managers in certain uses of the information. If you do release the information to managers, what are you releasing and when? Are you training managers to maintain confidentiality?
Being swept into a contract for tech equipment to manage issues that have arisen due to COVID-19, may feel like you are on the wave of change. You don’t want to crash into unexpected legal troubles. Employers Council can help; please call us with questions.