USA: Social Distancing Wearables

SOCIAL DISTANCING WEARABLES: ARE THEY RIGHT FOR YOUR WORKFORCE?

As companies work to prepare for their return to a safe workplace, establishing a social distancing policy is key. Innovators are rising to meet the changing needs of the workplace with a range of technologies, including social distancing “wearables” to be worn by employees and visitors. A wearable is a smart electronic device worn close to the skin, that is able to detect, analyse and transmit information – usually in the form of a bracelet or badge. Wearables used for social distancing, generally alert the wearer that he or she is getting too close to a colleague, which may boost an organisation’s efforts to adhere to distancing requirements.

The advantages of these technologies can be substantial, quickening the path to compliance and opening the organisation’s doors to business. However, implementing a social distancing policy that is effective, and in compliance with privacy, security, employment and health laws is an ongoing effort.

Below are some questions organisations should consider:

• What is the organisation’s goal for the technology? If the goal of the workplace is to keep workers separate from one another, a social distancing wearable could be a helpful tool. On the other hand, if the goal is to identify workers exposed to COVID-19, then other technologies such as a contact tracing tool or temperature monitoring kiosk may be more appropriate.
• Does the technology work? As developers of wearables race to provide organisations with cutting edge tools to help them navigate the COVID-19 pandemic, there may be glitches along the way. It is important for employers to validate the accuracy and effectiveness of the device.
• Is notice/consent required? This may be a difficult question to answer without having an understanding of the data that the technology is collecting. For example, if the wearable is linked to an employee’s personally owned device, notice and consent are likely required, and most certainly a best practice. In addition, use of such technology may require an employer to consult, and possibly engage in bargaining with, the applicable works council or union. Finally, collecting the geolocation of employees, and interactions with others is likely considered elements of personal information under the General Data Protection Regulation(GDPR), California Consumer Privacy Act (CCPA) and other similar consumer privacy laws.
• Will workers participate? If implementation and/or usage is voluntary, the effectiveness of the technology in meeting the organisation’s goals may be substantially impacted. Regardless of whether implementation is voluntary or required, it is important for organisations to communicate with their workers to explain the goals of the technology, answer questions regarding same, and address concerns over privacy and related issues in order to ensure buy-in and effectiveness.
• How is data collected, shared, secured and deleted? Understanding the answers to these questions are imperative in order to help ensure compliance. This is especially true as there are numerous laws across the globe which may be implicated when data is collected from workers. In addition to statutory or regulatory mandates, organisations will also need to consider existing contracts or service agreements, which may provide for, or limit, the collection, sharing, storage, or return of data. Finally, whether mandated by law or contract, an organisation should still consider best practices to help ensure the privacy and security of the data that it is responsible for.
• When should the use of the technology end?  As organisations look to the future, and the hopeful end to the COVID-19 pandemic, they will need to consider when the state of the pandemic no longer supports the use of this technology.

In short, we now have extensive technology at our disposal and/or in development, which may play a crucial role in helping organisations address COVID-19, ensuring a safe and healthy workplace and workforce, and preventing future pandemics. Nevertheless, organisations must consider the legal risks, challenges, and requirements associated with any technology prior to implementation.

Jackson Lewis attorneys are available to assist you with these and other workplace issues. For more information, please contact John Sander (Principal) of Jackson Lewis at john.sander@jacksonlewis.com or visit www.jacksonlewis.com.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.