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U.S. COVID-19: Biometrics and Business Re-Opening

Now that wearing gloves has become the new normal because of the COVID-19 pandemic, biometric privacy litigation, which in recent years has centered on employers’ use of finger-scan timekeeping technology, may ultimately shift in focus to the measures that businesses implement as employees return to the workplace and customers begin to frequent their favorite establishments.  Body temperature checks, used to screen employees and visitors for a fever, are one such measure being considered as a first line of defense for public health.

To mount a defense against, or avoid altogether, biometric privacy class action litigation, businesses open to the public and employers must have a comprehensive understanding of the thermometer or thermal imaging technology selected—and the data it captures—before rolling out temperature screenings on a widespread basis.  Among the technologies available are:

  • Non-contact infrared thermometers that use lasers to measure temperature from a distance;
  • Thermal imaging cameras that detect elevated skin temperatures compared against a sample of average temperature values;
  • Monitoring systems that use thermal and color visual imaging to detect fevers in high-volume pedestrian areas; and
  • “Wearables” that can use radiometric thermometry measuring electromagnetic wave emissions.

While temperature screening has been endorsed by the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission, and various state and local governments, biometric privacy laws have not been suspended or amended.  The Illinois Biometric Information Privacy Act (“BIPA”) regulates the possession, collection, capture, purchase, receipt, and sale of “biometric identifiers” and “biometric information”—defined to include retina or iris

Biometric Privacy Targeted In Increased Class Action Litigation in Illinois

Even as technology advances and consumers become more accustomed to providing their fingerprints in routine, everyday transactions (such as unlocking their cellular phones), private entities, and employers in particular, are under attack in the courts for their use of finger-scan and biometric technology.

The Illinois Biometric Information Privacy Act (“BIPA”), effective since October 2008, regulates the collection, use, safeguarding, handling, storage, retention, destruction, and disclosure of biometric identifiers and information. The BIPA, however, was largely ignored until mid-2015 when the first wave of BIPA litigation was filed against social media and photo-storage/sharing services.

BIPA litigation has now turned its attention to employers. Since August 2017, in Cook County, Illinois alone, more than 30 class action lawsuits have been filed in state court alleging violations of the BIPA, mostly based on employers’ use of finger-scan technology for timekeeping tracking. The recent lawsuits generally allege that employers have collected, stored, and/or used workers’ fingerprints without providing notice to workers or obtaining consent. They also allege that employers lack written policies establishing a retention and destruction schedule for workers’ biometric information or identifiers. It has not yet been determined whether such timekeeping practices violate the BIPA.

What is a biometric identifier? A “biometric identifier” under the BIPA is defined as:

  • A retina scan
  • An iris scan
  • A fingerprint
  • A voiceprint
  • A scan of hand geometry
  • A scan of face geometry

The BIPA expressly excludes the following from the definition of “biometric identifiers”: writing samples; written signatures; photographs; human biological samples used

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