COVID-19: Employee Risks and Privacy

Michael Volkov
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The Volkov Law Group

Chief compliance officers and human relations leaders are facing enormous challenges in this COVID-19 pandemic.  The shut-down of offices and orders to employees to work from home or “tele-work” creates a unique set of risks.

Many companies already permit employees to work from home.  But we have never experienced a requirement that employees work from home.  Some jobs cannot be done from home, while others are seamless in the transition. 

Businesses are operating in unprecedented situation.  Most functions are continuing but being orchestrated from a workforce accessing business functions from home (via the Internet and the cloud).  No one could imagine this situation.

CCOs and HR representatives are able to exercise their responsibilities as if they are in the office.  Face-to-face contacts and meetings have declined for obvious reasons – but alternative internet-based meetings are occurring.  Everything is being accomplished from home. 

Legal and compliance risks, however, have grown exponentially. 

First and foremost, CCOs and HR staff have to recognize health and safety risks are primary.  If an employee cannot be guaranteed safety, then the company cannot operate.

Second, companies have to recognize that one or more of their employees are likely to test positive for the COVID-19 virus.  The implications of such a positive test are significant for maintaining privacy interests.  On the other hand, companies have to fairly inform other employees that they may have been exposed to the COVID-19 virus (from the employee) and may need to be tested.  Further, HR has to monitor COVID-19 testing for employees and potential contacts for possible spread that may warrant further testing of these employees.

Companies will face a delicate balance between safety/health and privacy interests.  The practical impact is that companies have to avoid an implied disclosure by revealing singular information about a positive-tested employee while protecting other employees who may have had contact with positive-tested employee.

Companies have to exercise great care in monitoring and preventing interactions that may threaten the health and safety of employees.  A risk assessment has to examine all employee interactions or potential contact with other individuals and potentially infected items.  For example, a shipping employee who receives certain goods at a warehouse as part of the manufacturing process may be exposed to COVID-19 even though there is minimal human interactions since COVID-19 may be transferred through human to packaging contact.  Given this risk paradigm, companies again may have to weigh shutting down operations, product lines or operations where risks of infection or harm to employees is significant. 

Companies have to reinforce open communications and encourage questions from employees about the COVID-19 virus, the company strategy for addressing the pandemic and specific questions that may arise.  The board and CEO have to step up, communicate and embrace the challenge posed by COVID-19.  While the company may not be able to answer all questions, this is a situation where availability, presence, honesty and transparency are critical for reassuring employees, stakeholders, and the community that the company is handling this difficult time with empathy, concern and honesty.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Michael Volkov, The Volkov Law Group | Attorney Advertising

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