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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

U.S. COVID-19: Workplace Temperature Screening: How To Develop and Implement A Screening Protocol

The notion that U.S. employers would engage in broad-scale temperature screening of employees would have once been essentially unthinkable.  But the realities of COVID-19 are changing the workplace, as least for the time-being.  With the encouragement of the Centers for Disease Control and Prevention (“CDC”) and some state and local governments, and in light of the blessing of the Equal Employment Opportunity Commission (“EEOC”), more employers are now considering the implementation of daily temperature screening[1] before employees enter the workplace.

In Part 1 of our two-part series on temperature screening, we addressed the question of whether employers may (or must) implement a temperature screening protocol.  Here, in Part 2, we address the question of how to implement such a protocol, i.e. what procedures for temperature screening in the workplace should employers implement? Below are a number of issues for employers to consider:

  • Decide who will be screened. Some employers are screening only critical infrastructure workers who were or may have been exposed to a person suspected or confirmed to have COVID-19.  Other employers are screening all employees, and often are also screening any contract workers and visitors who enter the workplace, unless doing so would be virtually impossible (e.g., a grocery store screening all customers).  Although deciding who will be screened is essentially a business decision, at all times, employers must ensure that employees are selected for screening on a nondiscriminatory basis.
  • Decide who will do the screening. The options for who will do the screening range
  • U.S. COVID-19: Employee Temperature Screening: What Employers Need To Consider When Deciding Whether To Implement a Screening Process

    In light of concerns about the spread of the novel coronavirus in the workplace, employers are confronting important questions pertaining to the screening of employees for COVID-19 symptoms, including as it pertains to taking employees’ temperatures: May (or must) we screen employees for fevers, and if so, how should we implement such a practice?

    In Part 1 of this two-part blog series, we address issues relating to the decision of whether employers may (or must) implement a temperature screening protocol.  In Part 2, we will provide guidance on how to do so.

    Non-Discriminatory Temperature Screening Is Permitted

    Taking an employee’s temperature is considered a medical exam under the Americans with Disabilities Act (“ADA”) and would normally be subject to strict restrictions. However, the federal Equal Employment Opportunity Commission (“EEOC”) has expressly stated in updated guidance that employers are permitted to screen employees for fevers due to the COVID-19 pandemic.  Some state agencies are following suit; for example, the California Department of Fair Employment and Housing recently issued guidance indicating that temperature checks are permissible and non-discriminatory under the present circumstances, so long as they are conducted on all personnel entering a facility.

    Federal Guidance Supports Temperature Screening In Certain Circumstances

    At the federal level, the Centers for Disease Control and Prevention (“CDC”) has advised all employers to consider “community level spread” of COVID-19 when determining appropriate workplace precautions, stating that workplaces in communities with minimal to moderate community spreading should, among other things, “[c]onsider regular health

    Employers Have Until September 30, 2019 to Submit Pay Data to the EEOC

    Update to our April 11 article:

    Earlier today, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered employers to submit worker pay data to the Equal Employment Opportunity Commission (“EEOC”) by September 30, 2019. In so ruling, the Court rejected arguments from worker advocate groups who had sought to require the collection of pay data by May 31, 2019.

    Pursuant to the Court’s Order, employers must submit two years’ worth of pay data to the EEOC.  While data for 2018 must be included in an employer’s September 30th submission, the EEOC is free to choose whether the second year of data will come from 2017 or 2019.   If the EEOC elects to collect data from 2017, employers will be required to submit the 2017 pay data by September 30, 2019 as well.  If the agency elects to collect data from 2019, employers will be required to submit the 2019 pay data in the spring of 2020.  The EEOC has until May 3, 2019 to decide whether it will collect 2017 pay data or 2019 pay data.

    If not already done, employers should immediately begin reviewing their collection processes to ensure that they are prepared to report the required pay data by September 30, 2019.

    Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers review and comply with EEO-1 reporting obligations.  If you or your organization would like more information or assistance in preparing EEO-1

    EEOC Proposes September 30, 2019 Deadline for Employers to Submit Pay Data

    In court documents filed on April 3, 2019, the Equal Employment Opportunity Commission (“EEOC”) announced that employers may be required to submit pay data to the agency by September 30, 2019.

    The filing was made after Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered the EEOC to describe when and how it will comply with the Court’s March 4th Order lifting the White House’s Office of Management and Budget’s August 2017 stay on the EEOC’s collection of pay data.

    Pay data has received much attention from employers and advocates alike since the Court’s March 4th Order, but the EEOC has largely remained silent until this recent filing.  For example, on March 18, 2019, when the EEOC opened its online portal for filing EEO-1 reports for 2018 (which are due by May 31, 2019), the portal did not include any request for pay data.  Instead, the agency issued a statement that same day noting that it was “working diligently on next steps” regarding the collection of pay data.

    In addition to identifying a date by when employers may need to submit pay data, the EEOC’s April 3rd filing also proposes that employers only be required to submit pay data for 2018 (rather than 2017 and 2018) and describes the agency’s plan to use a data and analytics contractor to develop a new reporting program to collect the data.

    The September 30, 2019 deadline, however, is not set in stone.  Worker advocates objected to the

    Investigating Claims of Harassment: A Step-by-Step “How To” Part 6: Closing the Investigation and Additional Steps Thereafter

    This final installment of a six-part series on harassment investigations discusses how to close the investigation and steps to take after the investigation has been closed.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

    Close the Investigation

    Once the investigation has concluded, it is essential to close the investigation with the complainant, each witness, and the accused.  It may also be prudent, in some circumstances, to follow-up with the entire workforce. All close-out meetings that are held should be documented. When closing the investigation with the complainant, and generally with each witness, here are the key points to tell each person:

    • We are closing our investigation based on the information as we know it now. (This allows you to reopen if you learn more later.)
    • The Company has a strong non-discrimination and non-harassment policy. (Consider providing or showing a copy of the policy.)
    • The Company takes claims of discrimination and harassment seriously and follows up to stop it, if we can conclude that inappropriate conduct occurred.
    • (If appropriate:) We have taken action on the complaint that we received, but we are not free to disclose any disciplinary action taken toward other employees. (It may be appropriate to tell the complainant more here, such as specific actions taken, in order to help reassure the complainant that reasonable steps have been taken to end the conduct and prevent its recurrence, and/or to inform the complainant of any limitations or

    Investigating Claims of Harassment: A Step-by-Step “How To” Part 5: Other Sources of Evidence, Summarizing the Investigation, and Reaching a Conclusion

    Before concluding a harassment investigation, the investigator should follow up with other possible sources of evidence, record and summarize the investigation, and reach a conclusion.  This fifth part of a six-part series discusses these final steps in the investigation process.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

    Follow Up With Other Possible Sources of Evidence

    The investigator should consider whether any other sources of evidence exist that could aid in the investigation process and gather any such evidence. If the evidence is in the possession of either the complainant or the accused, the investigator should ask that the evidence be shared with him/her.

    Some examples of physical evidence that may aid in the investigation process are:

    • Time cards
    • Calendars or diaries
    • Telephone records
    • Travel logs
    • Expense reports
    • Notes, letters, cards, and/or handwriting samples
    • Emails, voice mails, and text messages
    • Computer files and computer log-in/log-out information
    • Internet usage
    • Security/surveillance video
    • Building entry/exit swipe information
    • Recordings
    • Photos
    • Offensive material at issue (magazines, calendars, postings, etc.)
    • Personal gifts
    • Timing of the incident (e.g., just before or after a performance appraisal or just before or after the accused is rejected by the complainant or vice versa)
    • Physical evidence, such as maps or relative locations of the parties or the areas in which the complainant and others work
    • Prior performance evaluations
    • Documents containing other complaints by the complainant, other complaints about the accused, prior investigations involving the same persons, recent adverse

    Investigating Claims of Harassment: A Step-by-Step “How To” Part 4: Note-Taking Techniques and Tips for Assessing Witness Credibility

    In any investigation of a harassment complaint, the investigator must interview people and take notes.  This fourth part of a six-part series addresses techniques for note-taking and tips for assessing the credibility of witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

    Helpful Witness Interview Note-Taking Techniques

    Make sure that your notes are legible and that they are clear on who said and did what and which part of the story is according to whom.

    Start a new page for each interview.

    At the top of the page, state the names of those present at an interview, the date, time and place of the interview.  Sign (or initial) and date the notes.

    Although it is not necessary to write in complete sentences, the notes should be free from misspellings or grammatical errors so that the interviewer is not discredited in the course of litigation.

    Take detailed notes, as close to verbatim as possible, during each interview.  If necessary, ask the interviewee to speak more slowly, so that your notes will be as thorough and accurate as possible.  Notes should provide enough information to understand, when reviewed later, what was asked and what information was provided.

    Report matters asked of the interviewee as well as words spoken and facts provided by the interviewee.  Document any refusal to share information.

    Do not include your interpretations, beliefs, assumptions, conclusions, etc., about the facts stated. Rather than guess at reasons or intentions,

    Investigating Claims of Harassment: A Step-by-Step “How To” Part 3: Interviewing the Accused and Other Witnesses

    You have received a complaint of harassment and interviewed the complainant.  In this third part of a six-part series, we discuss interviewing the accused and other witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

    Interviewing the Accused

    At the beginning of the meeting, the investigator should:

    • Explain that a complaint of sexual (racial, etc.) harassment has been brought against the accused; that the Company is conducting a prompt and thorough investigation to determine if inappropriate conduct has occurred; and that no conclusion has yet been reached.
    • Identify your role as investigator.
    • Tell the accused that the Company prohibits retaliation against a complainant, and anyone the accused suspects may have participated in any way in the investigation.
    • Explain that the accused must provide a truthful account of what occurred, and identify all evidence and witnesses who may have relevant knowledge.
    • Explain that efforts will be made to share information on a need-to-know basis only, but do not promise confidentiality.
    • Explain the expected investigation procedure and the expected time frame involved.

    During the Interview, the investigator should:

    • Explain the details of the allegations against him/her (the investigator need not disclose the source of the information, but usually should disclose the allegations in enough detail so that the accused can respond). Ask about the alleged conduct/comments first, before identifying the complainant.
    • Obtain the accused’s account of what occurred, as specifically as possible. (Depending on the circumstances, it

    Investigating Claims of Harassment: A Step-by-Step “How To” Part 2: Interviewing the Complainant and Planning the Remainder of the Investigation

    You have received a complaint of harassment.  What next?  In this second part of a six-part series, we focus on interviewing the complainant and planning the remainder of the investigation.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

    The interview of the complainant is usually the first and most important interview that will be conducted, and therefore, should be carefully planned beforehand. This interview, and all others, should be conducted in a private, neutral meeting space at your location. The following provides an illustration of the areas that should be covered by the investigator during the interview of the complainant.

    At the beginning of the meeting, the investigator should:

    • Identify his/her role as investigator (i.e., you are a neutral conducting an investigation on behalf of the Company).
    • Ask the complainant whether he/she is comfortable with the investigator as the investigator and believes that he/she can conduct an impartial investigation. If the complainant is not comfortable with the investigator or indicates a belief that the investigator cannot conduct an impartial investigation, the investigator should try to identify another person to conduct the investigation. If the investigator is having difficulty with this, an HR supervisor or the Company’s attorney should be contacted.
    • Explain that the Company is conducting a prompt and thorough investigation to determine whether inappropriate conduct has occurred and, if it determines that it has, will take appropriate corrective action to stop it.
    • Assure the complainant that
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