Keypoint: Although it is unclear whether the forthcoming bill has any chance of becoming law, it is further evidence that companies need to consider the significant privacy issues and risks associated with implementing COVID-19-related technology.

On April 30, 2020, a group of four Republican Senators announced their plan to introduce federal privacy legislation that would regulate the collection and use of personal information relating to the fight against the Coronavirus pandemic. The four Senators are U.S. Sens. John Thune (R-S.D), chairman of the Subcommittee on Communications, Technology, Innovation, and the Internet; Roger Wicker (R-Miss.), chairman of the Senate Committee on Commerce, Science, and Transportation; Jerry Moran (R-Kan.), chairman of the Subcommittee on Consumer Protection, Product Safety, Insurance and Data Security; and Marsha Blackburn (R-Tenn.).

Keypoint: The use of no-contact temperature taking devices can be an important part of a company’s return-to-work program, but companies should fully vet these devices to ensure that they are not unintentionally violating privacy laws or exposing themselves to potential liabilities.

As U.S. companies start planning and implementing return-to-work plans, many are considering whether to use no-contact temperature taking devices.

The federal government has recognized that taking temperatures is a step that companies can take to mitigate the risk of spreading coronavirus. For example, the CDC interim guidance for critical infrastructure workers recommends that employers “measure the employee’s temperature and assess symptoms prior to them starting work.” EEOC return-to-work guidance also recognizes that employee screening “may include continuing to take temperatures . . . of all those entering the workplace.”

States and cities also have recommended taking temperatures. For example, in Colorado, the Governor’s office has encouraged large workplaces to implement symptom and temperature checks as part of the state’s gradual return-to-work strategy. New York Mayor Bill de Blasio has stated that temperature checks will be part of the City’s return-to-work program. New Jersey Governor Phil Murphy suggested that restaurants could check temperatures before allowing customers to enter.

However, the taking of temperatures creates logistical issues such as who should take the temperatures, what precautions should be in place, and when and where the temperatures should be taken. As with many other facets of this pandemic, companies have looked to technology to answer some of these questions, and there are many solutions – some old, some new – in the marketplace.

Depending on the type of device, the use of no-contact temperature taking devices can raise numerous privacy issues. As companies begin to vet and implement these devices, they will need to ensure that they do not unintentionally violate privacy laws or assume potential liabilities.

Keypoint: If properly deployed, the use of COVID-19 contact-tracing apps by employers, in combination with other measures, could be an effective way to return employees to the workforce. However, before deploying these apps, employers should take caution to fully vet the technologies being used to ensure that employee privacy is respected.

As the United States and Europe have started the process of returning to work, the development, deployment, and use of COVID-19 contact-tracing apps has become a focal point for how governments intend to mitigate risk. China, Singapore, and South Korea have already implemented national contact-tracing apps. European countries and Australia have been rapidly working towards their deployment.

In connection with the rapid development of governmental contact-tracing apps, tech companies have started to develop similar apps for employers. A handful of employer-focused contact-tracing apps are already on the market and many more are in development. Some employers are already planning to deploy these apps. For example, Ferrari recently announced that it will utilize a contact-tracing app as part of its “Back on Track” plan.

The use of these apps raises numerous privacy concerns for U.S. employers. As employers begin to vet these apps, they will need to ensure that they do not unintentionally violate privacy laws or assume liabilities by deploying them with their workforce.

Keypoint: The AG’s office again signals that the CCPA’s July 1 enforcement deadline will not be extended.

In another sign that the California Attorney General has no plans to delay the CCPA’s July 1, 2020, enforcement deadline, on Friday April 10, 2020, the AG’s office issued a press release reminding California residents of their data privacy rights during the COVID-19 pandemic.

The U.S. Department of Health & Human Services Office of Civil Rights (OCR) announced that it will refrain from imposing penalties for violations of HIPAA for covered entities or business associates participating, in good faith, in the operation of COVID-19 Community-Based Testing Sites during the nationwide public health emergency. The notice related to the relaxation…

Section 3221 of the CARES Act ratified fundamental changes to the Public Health Service Act requiring HHS to revise 42 C.F.R. Part 2,  regulations within 12 months. The changes are significant and follow the increasing movement to align the rules that govern the confidentiality requirements of substance use disorder records with HIPAA. Our health law…

Keypoint: After an active winter of proposed state privacy laws, it appears that all eyes will once again be on California for the remainder of the year as we wait for final CCPA regulations, the fate of the CCPA 2.0 ballot measure, and other privacy bills being considered by the California legislature.

Over the past few months, there has not been a lack of things to talk about as it relates to U.S. privacy law developments. Between the CCPA, Washington Privacy Act, CCPA 2.0, and numerous privacy bills proposed in state legislatures, practically every day brought a new story.  However, a lot has changed in a short period of time.

First, the Washington Privacy Act failed to pass (although Washington did enact a facial recognition bill). Then, the world changed with the Coronavirus pandemic.

Yet, there are still developments in U.S. privacy law. Below is an overview of the ones that we have been tracking over the past few weeks.

The Department of Health and Human Services, Office of Civil Rights (OCR) recently released guidance and helpful examples illustrating how Covered Entities can comply with HIPAA and the Privacy Rule and still disclose protected health information (PHI) about individuals infected with or exposed to COVID-19 to Essential Providers. Read the full post on our Healthcare…

On March 20, 2020 OCR released a Frequently Asked Questions list to help further clarify its March 17th Waiver.  In the FAQ, OCR clarifies that the waiver not only allows providers to utilize platforms that do not comply with the requirements of the Security Rule (discussed in our original post), but it also applies to the Breach Notification and Privacy Rules that may be implicated when using a less secure platform. OCR also assures providers that if protected health information is intercepted and during the the “good faith provision of telehealth,” OCR will not pursue otherwise applicable penalties.

Keypoint: Individuals and businesses should take steps to prevent against becoming victims of the rapid rise in Coronavirus-related hacking scams.

On March 20, 2020, the FBI issued an alert warning that cyber thieves are actively trying to exploit the Coronavirus pandemic to steal money, commit identity theft, and engage in other hacking-related activity. The Cybersecurity and Infrastructure Security Agency (CISA) issued a similar alert earlier this month.