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Phia Group Media

Privacy Pitfalls - Considerations for Reopening the Office

By: Nick Bonds, Esq.

Summer is officially here, and employers and employees alike are all wondering if, when, and how to go back to the office. After a spring spent cooped up at home self-isolating and social distancing, many are eager to get back into their old routine, to reclaim some sense of normalcy. While we can all certainly sympathize with that sentiment, the specter of the coronavirus still looms large. To safeguard our collective health and sanity, we all have a responsibility to ensure that a return to office life is handled carefully, lest we experience a resurgence in cases and find ourselves cloistered in makeshift home offices for many months more.

The ideal solution is a vaccine, but that goal will likely not be realized until sometime in early 2021. Once a vaccine is created, there may still be delays in producing and distributing doses to Americans and the rest of the world, further delaying a return to something resembling the before times. To return to our workplaces sooner, the search continues for more immediate solutions.

Many employers, Phia included, have been putting a tremendous deal of thought into the question of how to get employees back in the office while ensuring their health and safety. We’ve implemented a number of measures to minimize risk, such as limiting the total number of people in the office, providing masks and hand sanitizer to employees, checking temperatures as people enter the building, and posting a tremendous amount of informative signage around the office reminding people to keep their distance, cover their faces and wash their hands.

Some employers have sought more elaborate, technological solutions. A number of health and symptom-checking apps have sprung onto the scene, promising to measure employees’ health status and stave off potential workplace outbreaks. Some of these technologies are fairly straightforward, like social-distancing wristbands that buzz when those wearing them get too close to one another. In the right setting, such a device could certainly keep people mindful and help limit vectors of transmission. Other technologies are both more complex and more invasive. Smartphone apps that track employees’ location and act as near-continuous contact tracers, and biometric scanners that monitor for symptoms as employees move through the workplace. Far from Bradbury-esque MacGuffins, these technologies may become the new normal for many employees.

An alternative approach has been to ramp up antibody testing among the workforce, aiming to bring in those employees who have already been exposed to the virus and are (hopefully) immune. The fear with this approach is that it could inadvertently create a two-tiered economy, implicitly valuing employees who have been infected over those who have yet to be exposed. This could even create a perverse incentive, encouraging employees to actively seek to infect themselves as a pathway to returning to work, one of the many reasons that the World Health Organization discourages the “immunity passport” approach.

While none of these strategies can guarantee a virus-free workplace, they can certainly keep us all mindful and encourage best-practices. But at worst, these technologies implicate fundamental privacy concerns, which employers must be aware of. Obvious regulatory landmines for employers come in the form of laws like HIPAA and the ADA, which protect employees’ sensitive health information data. Agencies like the HHS’s Office of Civil Rights and the EEOC have weighed in, offering updated guidance to employers on how to balance employee privacy with maintaining a safe work environment amid the pandemic.

As more workplaces begin reopening, employee safety is a top concern, but privacy requirements cannot be forgotten. Employers must ensure their approach to reopening is a balanced equation, accommodating their business needs as effectively as possible while keeping their employees healthy and their health information secure.