Companies reopening their offices and facilities will be collecting sensitive personal and health information about their employees (as well as about customers, vendors, and other visitors) to track COVID-19 symptoms. Although the Americans with Disabilities Act (ADA) typically places strict limits on the collection, use, and disclosure of health information about employees, the ongoing pandemic has prompted the Equal Employment Opportunity Commission and Centers for Disease Control and Prevention to permit the widespread gathering of health information in the workplace in an effort to stem the spread of the coronavirus.

While ADA limitations have been eased, privacy laws have not. Various state, federal, and foreign privacy regulations impose strict requirements on companies collecting and using health information and other sensitive or personal information. For example, companies must:

  1. Notify individuals about the purposes for the collection, use, and disclosure of personal and health information and (in certain instances) obtain consent from individuals before engaging in such collection, use, and disclosure.
  2. Ensure that the collection, use, and disclosure of personal and health information is only for purposes that are specifically permitted by privacy laws.
  3. Notify individuals of their rights with respect to personal and health information, and honor those rights whenever exercised by individuals.
  4. Implement robust security controls that are appropriate to protect the sensitive of the information collected, used, and disclosed.

Because many companies have not previously engaged in the widespread handling of sensitive personal and health information, they likely are unfamiliar with the privacy requirements that apply to such information, and are unaware of and unprepared to implement the controls required by the regulations above, and others like them. Consequently, as businesses reopen, return employees to the workplace, and operate during the pandemic, they should work with an experienced privacy attorney to conduct a privacy risk assessment and implement the controls necessary under applicable privacy law.

For more information on the specific privacy laws that may govern how your business collects health information as part of its COVID-19 prevention efforts, please see New Privacy Concerns Emerge as Businesses Reopen.

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Photo of Cameron Shilling Cameron Shilling

Cameron is a Director at McLane, Graf, Raulerson & Middleton. He has an active practice in New Hampshire, Massachusetts, and throughout New England. Cam leads McLane���s Privacy and Data Security Group. He comes from a background of handling technology, business litigation, and employment…

Cameron is a Director at McLane, Graf, Raulerson & Middleton. He has an active practice in New Hampshire, Massachusetts, and throughout New England. Cam leads McLane���s Privacy and Data Security Group. He comes from a background of handling technology, business litigation, and employment matters.

Cam���s expertise in data security includes managing security audits, preparing and implementing written data security policies, addressing day-to-day security issues, and investigating and remediating data security breaches. He has dealt with these issues under a range of state and federal laws, including the Gramm-Leach-Blilely Act, Health Insurance Portability and Accountability Act (HIPAA), Health Information Technology for Economic and Clinical Health Act (HITECH), Genetic Information Non-Discrimination Act (GINA), Children���s Online Privacy Protection Act (COPPA), Fair Credit Reporting Act (FCRA), Fair and Accurate Credit Transactions Act (FACTA), a number of state data security laws.

Cam���s expertise in data privacy matters includes creating and implementing information security policies, advising employers with respect to workplace privacy, advising clients with respect to social media, advising companies with respect to customer and consumer privacy, and handling claims against companies for invasion of data privacy. He has dealt with these issues under a number of state and federal laws, including the Electronic Communications Privacy Act (ECPA), Stored Communications Act (SCA), Computer Fraud and Abuse Act (CFAA), Fair Trade Commissions Act (FTC Act), Massachusetts��� Privacy Act, state Wiretap Laws, and a variety of other state laws.

Cam can be reached at cameron.shilling@mclane.com. His direct dial is 603-628-1351, and his cell phone is 603-289-6806.