Seyfarth Synopsis: During the COVID-19 crisis, employers are being thrust into situations in which they inquiring into and monitoring the private lives of their employees in unprecedented ways. However, employees still have privacy rights and, even though some intrusions upon employee privacy are warranted during the pandemic, employers need to beware of unintended consequences of legally permissible acts and narrowly tailor these intrusions to serve the goal of safety and security in the workplace.
Most employers today probably did not think they would ever find themselves taking their employees' temperatures to make sure they are not sick, requiring employees to fill out questionnaires regarding recent personal travel or asking employees if they are experiencing symptoms of respiratory illness – all with the blessing of the U.S. Equal Employment Opportunity Commission, no less. Indeed, the Centers for Disease Control published on April 8, 2020, an "Interim Guidance for Implementing Safety Practices for Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19" that specifically calls for employers to measure the temperature of such workers as a "pre-screen" before they can return to the workplace.
It might strike some people that employees have diminished privacy rights during the current global health emergency caused by the coronavirus. However, this is not true. Employee privacy rights are still alive and well, but the circumstances in which employers – and the world – find themselves have changed.
Privacy rights in the workplace are and have always been the product of a delicate balance between the right of employers to run their businesses and ensure safety and order in their workplaces, on the one hand, and the right of employees to keep their employers out of their private lives, on the other. For example, every state has its own common law related to the tort of invasion of privacy, but most states adhere to the formula contained in the Restatement of Torts, 2d, which defines an invasion of privacy as an intentional intrusion upon seclusion of another that "would be highly offensive to a reasonable person." The determination of what is "highly offensive" to a "reasonable" person is fact-intensive and depends on a number of factors under the case law. In other words, context matters: what is the purpose of the intrusion and was the intrusion narrowly tailored to serve that purpose?
Currently, in the situation with COVID-19, the balance between the employer's right (indeed, obligation) to keep the workplace safe for its employees is tipping in favor of increased intrusion into matters related to employees' health given the threat presented by COVID-19 in the workplace. However, employers need to exercise restraint and common sense when navigating these unchartered waters.
For example, the fact that employers are legally permitted, and encouraged by the CDC, to take employee temperatures amidst the current pandemic does not end the privacy analysis. If an employer is going to take employees' temperatures, thought needs to be given to the execution. Who is going to take the temperatures? Where? How? How will the employer protect the safety of the person taking the temperatures? If someone has a high temperature, what happens next? How will that person's privacy be protected when there is a line of other employees present waiting to have their temperature taken? Will temperature information be recorded? How will it be kept confidential? The moral of the story here is that, although the employer may be acting legally in taking an employee's temperature in the first instance, an employer could easily do so in a manner that creates additional privacy concerns and runs afoul of the law.
There will come a time when the COVID-19 crisis has passed, and when it does, there will likely be a reckoning for employers who have made the mistake of thinking their employees' privacy rights went on a temporary hiatus during the pandemic. Inevitably, there will be a backlash – and legal claims – from employees whose privacy rights were not properly balanced by their employers. History will separate those employers who acted in a reasonable and thoughtful manner with respect to balancing their employees' privacy rights from those who did not.
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