Reopening Plans and Recommended Protocols Beg New Privacy Issues

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Farella Braun + Martel LLPWhile far from getting us back to any kind of normal that predated the COVID-19 pandemic, states have begun to relax lockdown requirements and some previously-closed “nonessential” businesses are returning to operations. With such openings, governmental entities, trade organizations, and others are wisely recommending protocols, including using wellness screenings, in an effort to lower the risk that such reopenings result in a reversal of trends that have flattened the infection curve. While such protocols focus on ensuring the health and wellbeing of employees, customers, and others physically visiting the businesses and are necessary in any consideration of reopening, businesses implementing new data collection from their employees and customers need to consider the privacy implications of doing so.

Reopening and Personal Information

A common feature of reopening guidelines and plans is wellness screenings of employees and customers. Indeed, various federal agencies (e.g., the EEOC and the Centers for Disease Controls) and state, county, and city governments have issued or have long had guidance that encourage wellness screens of various levels including pre-entry symptom questionnaires and on-site and/or home temperature checks. In connection with contact tracking, restaurants are likely to collect emails and/or phone numbers. To the extent the company collects such information and ties it to an individual’s identity, this personal information would be protected under various privacy laws and thus would require companies to take specific actions to properly handle and protect such information. While the health and safety of employees and the public at large is of course of preeminent importance, the privacy requirements relating to the collection and use of personal data should not be taken lightly.

Laws Implicated

In addition to employment, health and safety, and various other laws that will apply to reopening businesses, there is no shortage of laws that could be implicated by the collection of wellness data. Aspects of the federal Health Insurance Portability and Accountability Act (HIPAA), California’s Consumer Privacy Act, Illinois’ Biometric Privacy Act and various other health and privacy-related laws address the collection and use of such data. Additionally, competing bills in the United States Senate—namely the Republican-introduced COVID-19 Consumer Data Protection Act and the Democrats’ Public Health Emergency Privacy Act—directly address the protection and use of data collected during and in efforts to address the current pandemic. To be sure, both federal and state law will play a key role in how such data is collected, used, and protected.

Addressing Privacy Requirements

No matter what the governing law, it is clear businesses will need to be very careful in collecting and using employee and customer data collected in connection with the companies’ efforts to prevent or at least limit further spreading of COVID-19 during when reopening for business. The legal landscape, forward-facing and internal policies, and contractual relationships all require thoughtful examination sooner rather than later.

First, it will be necessary to determine exactly which laws apply to your business. As noted above, there are various federal and state laws that could apply depending on the nature of information collected and the jurisdiction covering such collection. No matter what laws apply, though, notice will likely be required before collecting any personal information from an individual. As such, businesses must work now to prepare appropriate disclosure documents detailing the information to be collected, how that information will be used, and with whom it will be shared. While actual consent is not usually required to collect personal data under current privacy laws in the United States, getting such consent to data collection and use should be considered.

Businesses must also create and implement internal policies and controls that limit the sharing of data arising from wellness screenings. To the extent such data includes COVID-19 status (i.e., recording whether an individual has tested positive for the disease), anonymizing and aggregating data will provide the best privacy protection and better insulate the company against potential privacy law violations.

To the extent personal data from such screenings is shared with third parties such as vendors, businesses must ensure that recipients have appropriate confidentiality and privacy controls in place to safeguard downstream protection.

Balancing Act

Data privacy considerations will necessarily have to be balanced against ensuring the safety of employees, customers, and other business visitors in connection with the reopening of businesses as lockdown restrictions are lifted. With advanced planning, companies can give appropriate weight to the competing sides of the scale.

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.

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