Advocating for Employee Privacy during COVID-19

How to Return to Work Safely while Protecting Employee Privacy

As the economy starts to reopen, U.S. employers face the overwhelming task of ensuring a safe and secure environment for returning workers. To help curtail the spread of COVID-19, they’re using preventive measures like taking employees’ body temperatures and asking workers to fill out screening questionnaires. Such measures raise serious privacy concerns, such as:

• How to protect the privacy of an employee with a suspected or confirmed COVID-19 diagnosis.
• What employers will do with the personal health data it collects.
• Whether they open the door for future employee surveillance.

What Regulators Say

The Centers for Disease Control and Prevention (CDC) issued interim guidance for businesses and employers. The CDC says health screenings should be kept “as private as possible.” And while employers can tell their workers someone has COVID-19, they cannot name that person.

The U.S. Equal Employment Opportunity Commission (EEOC), which enforces the Americans with Disabilities Act (ADA), updated its guidance with COVID-19-specific information for employers. The EEOC guidance indicates that ADA-covered employers can:

• Ask employees who call in sick if they’re experiencing COVID-19 symptoms. (The ADA requires that all information about employee illness be kept as a confidential medical record.)
• Take an applicant’s temperature as part of a post-offer, pre-employment medical exam.
• Screen applicants for COVID-19 symptoms after making a conditional job offer.

What Experts Say

While the effectiveness of many prevention efforts is under question, the potential for violating personal privacy is not. For example, some countries are considering issuing so-called immunity certificates to people who’ve recovered from COVID-19. These individuals would not face the same restrictions as others who have not been infected.

“Do we really want a world where some people can go to work and others can’t based on their immunity status?” Hank Greely, a professor at Stanford Law School who studies the social implications of new health technologies, told The New York Times. “The people who can’t will say, ‘This is unfair,’ and they’ll be right.”

Civil liberties experts raise another concern: linking identification technologies, such as facial recognition to an employee’s health status. “We are accepting encroachments on privacy here that we would not normally accept,” Jay Stanley, a senior policy analyst at the American Civil Liberties Union, told The New York Times. “We need to be vigilant to make sure that they don’t outlast this crisis.”

What Employers Can Do

In their recent report, “Balancing employee privacy and public health and safety,” analysts at PriceWaterhouseCoopers (PwC) called employee privacy during COVID-19 a possible “sleeping giant.” They noted that while workers are likely to cooperate with employers’ health-screening and tracking measures, it could impact their “morale and engagement.” These measures could also subject employers to regulator scrutiny.

To help address these issues, PwC provides a five-step privacy action plan for employers. It recommends:

1. Updating global employee privacy policies and employee training to account for COVID-19 response.
2. Frequently communicating with workers about the ways their data is collected, used, protected, and shared.
3. Equipping employees to securely and privately WFH with “standardized and tested capabilities.”
4. Designing privacy-friendly default settings into workforce-facing technologies. Also, give workers control over their personal information and delete employee data collected during the pandemic when it’s no longer needed.
5. Operationalize the monitoring and response of global privacy regulations.

As employers plan to reopen after the pandemic, they walk a fine line between public safety and personal privacy. We hope that as they reconfigure workplaces, require social distancing, and implement virus-screening protocols, they will remember that individual privacy is an essential cornerstone of an open democracy.

Stay tuned to our blog for the latest on legislation, technology, and all things data privacy.