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Workplace COVID-19 testing raises biometric integrity issues



Employers testing their employees for COVID-19 should be careful to inadvertently also collect biometric information in violation of state privacy laws. privacy, but other states have enacted similar laws and others are considering legislation or regulations, sources said.

Although laws create potential debt, the use of consent forms can reduce the risk, they say.

Many experts point to a lawsuit against Amazon.com Inc., filed in state court in September, in which the online retailer was accused of violating BIPA by demanding that workers at its Mundelein, Illinois warehouse have their face geometry scanned by a face recognition camera and their temperature is taken before entering the facility. The case, Michael Jerinic v. Amazon.Com Inc. and Amazon Com LLC. was transferred to the U.S. District Court in Chicago on October 30.

The lawsuit, which seeks litigation, alleges that Amazon failed to inform workers that their biometric information was collected and to obtain their consent, which is required by law.

"The most important statement there is that employees claim to have lost control or the right to control" their biometric information, "said Ted Stefas, vice president and chief insurance officer at Argo Pro, a unit of Argo Group International Holdings Ltd.

Other states, including Texas, Washington, California, and New York, have similar laws, although Illinois law, which gives individuals the private right to sue in the matter, may have the greatest breadth in terms of biometric information. Observers say the issue is also about the agendas of many other states.

"All states are beginning to think about the consequences of employers collecting personal information about their employees," and now that they are returning to work and employers are pursuing health. screening "it will, of course, address these privacy issues," said Lauren Kim, Chicago-based senior vice president and chief technical officer of NFP Corp.'s group of financial institutions.

"I absolutely believe this could be a potential risk to employers," said Ruth Kochenderfer, Washington-based CEO and co-chair of Marsh LLC's Financial and Professional Healthcare Practices.

The issue is likely to lead to increased claims, says Stefas.

But "The extent to which these claims will have any credibility is still unknown," says Priya Gandhi ̵

1; Abriano, New York-based technical specialist for QBE Insurance Group Ltd "We have to wait and see what the courts will say," she said.

Employers install scanners, but they may not think about the potential privacy issues they may face, says Sonya Rosenberg, a partner with Neal Gerber Eisenberg LLP in Chicago.

"The critical issue for employers is to ensure that when they do COVID-19 screening, they do not get into the collection or storage of biometric information," says Carlos Arévalo, a partner with Smith Amundsen LLC in Crystal Lake, Illinois.

The problem can be supplemented with more sophisticated machines that potentially record more than temperature, such as face geometry, he said.

Jenny W. Colgate, Member of the Law Firm Rothwell, Figg, Ernst & Mambeck P.C. In Washington, companies said they log in to the information they collect and review privacy laws to make sure they are not violating them.

Another challenge is that employers operating in multiple states may need to comply with several different laws regarding collection. , use and storage of information, says Kelly Geary, New York-based national practice manager for executive risks and cyber with EPIC Insurance Brokers & Consultants.

Jason C. Gavejian, Principal with Jackson Lewis P.C. in Morristown, New Jersey, said COVID-19 testing "is ever evolving, and because (employers) seem to be taking steps to streamline the process, they should carefully consider any effects that may have on their business," including evaluating the functionality of the devices they use.

Experts say that it is not necessarily complicated to communicate information about the use of data and to obtain the consent of employees. "I suspect you could probably get a fairly simple consent form," as long as it is informative, Kochenderfer said. "That would probably be enough."

Observers note that there are additional privacy-related issues with respect to COVID-19 under other laws. These include the Federal Americans with Disabilities Act, the Family Medical Leave Act and the Genetic Information Nondiscrimination Act of 2008, which prohibits genetic information discrimination in employment as well as other state and local laws. There are also Centers for Disease Control and Prevention recommendations.

Employers should ensure that "they follow all administrative protocols set forth in the laws," said Nancy Farnam, Bloomfield Hills, Michigan-based Vice President of the Great Lakes Region. CEO, Compliance, with Arthur J. Gallagher & Co .: Employee Consulting. Catalog

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