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Worker Safety, Privacy Clash as Temperature Checks Become Norm

May 29, 2020, 9:40 AM

Employers are poised to collect health data from their workforces daily as they adopt temperature checks and other screening protocols to fight the coronavirus, triggering concerns about workers’ privacy and whether the practices will continue beyond the pandemic.

The way these once-taboo screenings are administered is key for employers to avoid penalties under privacy and disability laws. Major retailers such as Amazon.com, Walmart Inc., and Target Corp. already are checking their workers’ temperatures, along with grocery chains, health-care providers, and other businesses.

Problems could arise if companies continue to gather and store worker information that could reveal far-reaching health issues outside of Covid-19, attorneys and academics warn.

“On one hand you have to give a safe environment, and on the other hand, you have to make sure it’s not an intrusive thing,” said Myrna Maysonet, an attorney with Greenspoon Marder in Orlando, Fla. “It’s difficult balancing the well-being of everybody and the needs of the people.”

Advocates warn there are dangers for workers embedded in the advent of technology aimed at keeping workplaces safe, such as the possibility of increased employer surveillance. And screenings alone won’t be enough to prevent the spread of the virus. Already, workers at some grocery stores reportedly feared their medical information would be used against them and said managers refused to give them their readings. Employees are entitled to their health information.

The challenges with these protocols are that medical records are supposed to be confidential, accessed only by those who need the information, said Ruth Colker, a professor at The Ohio State University Moritz College of Law, who specializes in disability discrimination.

“Can they require employees to take temperature? Yes,” Colker said. “Do they have to keep those medical records private? Yes. Realistic? Probably not.”

Privacy Concerns

Workplace temperature screenings got a green light from the Equal Employment Opportunity Commission, which enforces a federal disability law that limits when employers can require workers to undergo a medical exam.

Managers at businesses across the country have been checking for a reading of 100.4°F or higher, defined as a fever by the Centers for Disease Control and Prevention.

Employers will have to be aware of the Health Insurance Portability and Accountability Act, and potential violations of the Americans with Disabilities Act’s confidentiality provisions, attorneys say. Temperature check lines can make it difficult to keep a worker’s health private and employers should store private medical information, such as a recorded body temperature, in a file separate from an employee’s standard personnel file.

Records related to employees’ health must be treated confidentially like any medical record, before and after the screening to make sure the process is kept private, said Patrick DePoy, an attorney with Bryan Cave Leighton Paisner in Chicago, who advises companies.

“The general concern is when you are dealing with anyone’s health or a condition that is a disability, there are a lot of privacy concerns,” DePoy said. “An employer is not entitled to know medical conditions unless I request an accommodation for it. It’s not necessarily some right for the employer to know that.”

Employers could face monetary penalties for failing to keep workers’ information private, depending on the law. The penalties for violating HIPAA range from $50,000 to $1.5 million per violation.

Certain states, such as California, have specific data privacy rules, as well. International employers must take heed of the European Union’s General Data Protection Regulation, which recently triggered a probe against Apple Inc. in Germany for checking temperatures at the door.

Possible Surveillance?

Temperatures can spike due to stress, heart conditions, pregnancy, and myriad diseases that aren’t tied to the coronavirus, said Jay Stanley, American Civil Liberties Union senior policy analyst. Employers could use that kind of data, gathered because of the Covid-19 threat, for worker surveillance or they could use health records in a discriminatory way.

“It’s important that provisions be made for the messy, complicated nature of human life,” Stanley said. “Because these raise privacy issues, we should question the effectiveness. Temperature can reveal all kinds of things about a person that lead to privacy concerns.”

Some public health experts have warned about the effectiveness of temperature checks. The University of California San Francisco hospitals don’t do temperature screenings because experts there found that the time and expense was unjustified and the screenings created a false sense of security, according to the ACLU research. The ACLU also fears the extended use of health data through wellness apps, and surveys that request health information from workers to allow them to come to work.

But the temperature checks give employees and customers the feeling of safety and the idea that the company is doing everything possible, even if the screenings don’t protect the workplace, said Michael Sheehan, a partner with McDermott Will & Emery in Chicago. He saidscreenings could lead to more practices, including antibody testing, and likely continue to be used far beyond the pandemic.

“We can expect that these investments that employers and building owners are making will become a way of life, globally,” Sheehan said. “This will be tracking and tracing where you have been. This will continue.”

‘Err on the Side of Safety’

Westgate Resorts, a nationwide company with 28 resort properties and 100 retail and restaurants across the country, adopted procedures to help stop the spread of Covid-19 in February, according to chief operating officer Mark Waltrip.

Employees receive fever screenings upon arrival and can work as long as their temperatures don’t hit 100.4°F. In addition to the screenings, workers also wear masks and answer questionnaires about who they’ve been in contact with. None of the data is saved to avoid privacy concerns, Waltrip said.

“We do our best to police them but the reality is there is no fail safe. That’s why you have to screen and monitor,” he said. “I have taken a position we’ll err on the side of safety, and sorry if it’s an inconvenience. I’ll fight that at a later date.”

—With assistance from Dan Stoller

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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