Let’s Get [Back] to Business: Private Means Private
I don’t know about you, but I cannot help but sing the Mulan song in my head every time that I read the title. I get pumped up a little thinking that it’s time to defeat the Huns (or in this case, COVID-19). Maybe it’s just me. Maybe I’ve been working from home for too long. This post will be the first in a series of posts titled “Let’s Get [Back] to Business”, where we give employers practical advice (and maybe some warnings) on opening their businesses back up after COVID-19. Now that the administrative part is out of the way, let’s get back to business. See what I did there?
Many of you may be aware that the White House has issued guidelines for employers preparing to reopen their workplace. These guidelines encourage employers to develop and implement policies regarding:
- Social distancing and personal protective equipment;
- Temperature checks;
- Testing, isolating, and contact tracing;
- Use and disinfection of high traffic areas; and
- Business travel
Looking at these guidelines, many of you probably never would have thought you’d be living in a world where you’d have to take the temperatures of your employees; test employees for sickness; or even that you’d be requiring employees to fill out questionnaires about their personal health conditions, whether they’ve traveled recently, and if they are experiencing any flu-like symptoms. Some of you may be thinking, “But, it’s a pandemic. Isn’t individual privacy out the window?” Wrong! Employer’s must still take into consideration the privacy of the individual as if we weren’t in the middle of a pandemic. Employers must maintain a balance between the employer’s right to keep the workplace safe for its employees and the privacy rights of the employees. Although candidly, every day during this pandemic it seems that this scale in tipping more and more in favor of the employer’s rights. However, don’t get too far ahead of yourself. Failure to properly plan for the privacy issues of coming back to work can put employers in hot water with the federal agencies and the court system. Now more than ever, employers need to exercise some restraint and common sense before throwing privacy rights out the window and navigating these uncharted waters.
Consider this scenario: It’s the first day of work since your business has reopened. There is a line of employees waiting outside to get their temperature checked. What employee(s) will be at the head of the line taking temperatures? How will this be done? How will you protect the safety of the person taking temperatures? If one employee has a high temperature, then what? Will temperatures be recorded? How often? How will that information be stored and kept confidential?
I can go on and on with questions, but you see how tricky this thing can get? It gets even more tricky when creating surveys and questionnaires about an employee’s medical conditions. Here are some tips for now:
- Policies and Procedures. Before implementing a new policy that would require employees to reveal health data, ask yourself:
- How will this be implemented?
- Who will be in charge of this policy or procedure?
- How will we ensure that the individual employee’s privacy will be protected?
- What is the likelihood that other employees will find out personal health information of that employee?
- How will the private information of the employee gathered be recorded and stored?
- How will you ensure confidentiality?
- Temperature Checks. If you plan to take the temperatures of employees, do so in a private area away from other employees. There should be a separate exit so that employees will not cross paths and others will be unaware of the outcome of that employee’s temperature check. If this is not possible, take social distancing to the extreme. Make sure there is enough space between employees so that another employee would not be able to overhear the temperature check results. Consider what will happen with the data you collect – if you are even collecting data.
- Ask. Finally, please, please, please, before any decision is made that would adversely affect that employee’s employment or potentially impact that employee’s right to privacy, check with your labor and employment attorney first.
Eventually, there will be a time when COVID-19 is a distant memory. When that happens, many employers will have to answer for mistakes made regarding the handling of employee privacy. Don’t be that employer! Be on the lookout for the next installment in this series. Until then, stay safe, healthy, and legally compliant.