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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Cameron Shilling

Cameron is a director in the Litigation Department, and chair of our Cybersecurity and Privacy Group.  In his 20 plus years as a lawyer, Cameron has managed, litigated and resolved numerous commercial matters involving data security, technology, business, and employment issues in New…

Cameron is a director in the Litigation Department, and chair of our Cybersecurity and Privacy Group.  In his 20 plus years as a lawyer, Cameron has managed, litigated and resolved numerous commercial matters involving data security, technology, business, and employment issues in New Hampshire, Massachusetts, New England, and around the country.  His education and depth of legal experience, as well as his professional interests and passions, are strengths that Cameron leverages to provide the highest quality counseling and litigation services to clients.

Combining his business, technology and employment interests, Cameron has developed a depth and breadth of experience in privacy and data security.  His résumé includes managing numerous data security audits, preparing and implementing written security policies, training executives, managers, and employees in data security, auditing, preparing and implementing data security agreements with vendors and business associates, addressing a wide variety of day-to-day security issues, and investigating and remediating many security breaches.  Cameron has dealt with these issues under a range of state and federal laws, including the Gramm-Leach-Bliley Act (GLB), Health Insurance Portability and Accountability Act (HIPAA), Health Information Technology for Economic and Clinical Health Act (HITECH), Securities and Exchange Commission (SEC) regulations, Fair Credit Reporting Act (FCRA), Fair and Accurate Credit Transactions Act (FACTA), the Massachusetts and California data security regulations, and a number of other state data security and breach notification laws.

Data privacy is another focus of Cameron’s practice, including creating and implementing privacy policies, terms of use agreements, information use and social media policies, advising clients about workplace privacy, social media, and consumer privacy, and handling data privacy claims asserted against companies.  He has dealt with these issues under numerous applicable laws, including the Child Online Privacy Protection Act (COPPA), United States and Canadian CAN-SPAM and anti-spam laws, Electronic Communications Privacy Act (ECPA), Stored Communications Act (SCA), Computer Fraud and Abuse Act (CFAA), Federal Trade Commission Act (FTC Act), Massachusetts privacy act, California Online Privacy Protection Art (CalOPPA), state wiretap laws, and a variety of other state and federal privacy 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.