October 27, 2020

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October 26, 2020

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Amazon Sued for BIPA Violations, a Reminder to Consider Privacy and Security Obligations for Your COVID-19 Screening Program

As organizations aim to return to some type of normalcy, and help ensure a healthy and safe workplace, many have implemented COVID-19 screening programs that check for symptoms, and an employee’s recent travel and potential contact with the virus. Moreover, many states and localities across the nation are mandating or recommending the implementation of COVID-19 screening programs in the workplace, and beyond. In many cases, organizations have leveraged various technologies, such as social distancing bands, apps, and thermal scanners, to streamline their screening programs.

Despite the benefits of COVD-19 screening programs, organizations should proceed carefully to examine not only whether the particular solution will have the desired effect, but whether it can be implemented in a compliant manner with minimal legal risk, particularly regarding the privacy and security implications. Just last week Amazon was hit with a proposed class action lawsuit in Illinois state court, claiming the company’s COVID-19 screening program violated Illinois’s Biometric Information Privacy Act (BIPA).  According to the complaint, Amazon employees were required to undergo facial geometry scans and temperature scans before entering company warehouses, without prior consent from employees as required by law when collecting biometrics identifiers, such as a facial geometry scan.

The BIPA sets forth a comprehensive set of rules for companies doing business in Illinois when collecting biometric identifiers or information of state residents. The BIPA has several key features: • Informed consent prior to collection • Limited right of disclosure of biometric information • Written policy requirement addressing retention and data destruction guidelines • Prohibition on profiting from biometric data • A private right of action for individuals harmed by BIPA violations. Statutory damages can reach $1,000 for each negligent violation, and $5,000 for each intentional or reckless violation.

The complaint alleges that Amazon employees “lost the right to control” how their biometric data was collected, used and stored, exposing them to “ongoing, serious, and irreversible privacy risks — simply by going into work”.  In addition to claims of failure to notify employees and obtain express consent regarding their biometric data collection practices, the complaint also alleges that Amazon failed to develop and follow a publicly available retention schedule and guidelines for permanently destroying workers’ biometric data.

While this case is an important reminder of BIPA implications, implementing a COVID-19 screening program, or any type social distancing or contact tracing technology to help prevent/limit the spread of coronavirus for that matter, can have privacy and security implications that extend well beyond the BIPA. In addition to the BIPA, depending on the type of data being collected and who is collecting it, such practices may trigger compliance obligations under several federal laws, such as the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA). In addition to BIPA, other state laws should be considered, if applicable, such as the California Consumer Privacy Act (CCPA) and state laws that require reasonable safeguards to protect personal information and notification in the event of a data breach. International laws, including the General Data Protection Regulation (GDPR) also can affected screening programs depending on their scope. In addition to statutory or regulatory mandates, organizations will also need to consider existing contracts or services agreements concerning the collection, sharing, storage, or return of data, particularly for service providers supporting the screening program.  Finally, whether mandated by law or contract, organizations should still consider best practices to help ensure the privacy and security of the data it is responsible for.

COVID-19 screening programs, as well as the extensive technology at our disposal and/or in development are certainly helping organizations address the COVID-19 pandemic, ensuring a safe and health workplace and workforce, and preventing future pandemics.  Nevertheless, organizations must consider the legal risks, challenges, and requirements with any such technology prior to implementation.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 289
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About this Author

Principal

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently helps to co-lead the firm's Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals.

In short, his practice focuses on the matrix of laws governing the privacy, security and management of data, as well as the impact and regulation of social media. He also...

973- 538-6890
Jason C. Gavejian, Employment Attorney, Jackson Lewis, Principal, Restrictive Covenants Lawyer
Principal

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination and wage and hour claims in both federal and state courts. Additionally, Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission, the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. His practice also focuses on advice/counseling employers regarding daily workplace issues.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm's attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.

(973) 538-6890
Attorney

Maya Atrakchi is the Knowledge Management (“KM”) Attorney for Jackson Lewis P.C.’s Privacy, e-Communication and Data Security and International Employment Issues Practice Groups, and is based in the New York City, New York, office of Jackson Lewis P.C.

212-545-4000
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