Memo
TO:
FROM:
DATE:
SUBJECT:
ISSUE
There are two situations to be addressed here:
- Whether in the first case, the firm can apply the use of a new version of the application for its attorneys which will read data in their various healthcare apps.
- Whether the defendant in the second case can bar the plaintiff from entering its premises even if the non-contact thermometer indicates green?
Short answer
- No
- No.
Rule of Law
Situation 1
The issue here relates to the important issue of employee monitoring. Under New York law, an employer can follow up and supervise employees as they work. Oversight is important to ensure that the company meets its targets and that the output of the employee reaches desired results. This can be done through the use of time cards, progress reports and other modes through which the employer can ensure that the employee meets the desired targets (Moore, Adam D. “Employee monitoring and computer technology: Evaluative surveillance v. privacy.” Business Ethics Quarterly (2000): 697-709.).
The SHIED ACT requires that the employee is to be informed of any mode and form of monitoring that the employer might carry out. It is required that the employee has to give consent to such monitoring. Furthermore, the bill defines the term employer to include individual corporation, partnerships or firms. The employer here must give prior notice to the employee in writing. The notice must include any and all interceptions on the done on any communications or internet access (Ibid. Section 52-c 2). An employer who attaches global positioning system (GPS) on its employees has to first inform the employee and show probable cause for doing so (People v Weaver (12 NY3d 433 [2009]) and United States v Jones (132 S Ct 945 2012)).
Where the employer abuses the powers given to it under the law by intercepting communications without consent or notice, it shall be found to have committed an offence (S. 5575-B Sec. 3). Consent proves to be the key issue and where no notice is given, the employer could be found to be in violation of the employee’s right to privacy. However, there are limited cases in which the employer can legally monitor with the employees electronically. The employer cannot share or disseminate private information with other parties. The employer is required to ensure confidentiality, inasmuch as monitoring is legal. (45 C.F.R. § 164.304). The law will therefore require that an employer has a duty to control access of the data (5 C.F.R. § 164.312(b)). Failure to secure the private information could in essence be a failure to safeguard the employee’s right to privacy (5 C.F.R. § 164.316).
The employer will have to show that it acted in good faith (Ibid § 3). It is important that the employer only carries out the duty to monitor only with regard to work related issues and should abstain from recording data on the personal lives’ engagements of its employees Fraser v. Nationwide Mutual Ins. Co., 352 F.3d 107 (3d Circ. 2003).
Situation 2
In the second situation, the relates to the enforcement of the emergency medical protocols and measures. Pursuant to Section 225 of the Public Health Act, COVID-19 protocols require enforcement. It goes on to enforce the use of face masks, implementation of the social distancing, restricting conduct of businesses to only essential service providers. Also, entry into the offices where there is reason to believe that the employee may have a higher temperature. Also, the Hero Act requires the New York to implement additional safety regulations. These regulations are in place to promote safety protocols in protecting their fellow employees from COVID-19. Non-compliance is will attract criminal penalties in form of a $50 fine per day and $1000 and $10000 for failure to abide with the regulations.
Analysis
Situation 1
The case her involves the issue whether the corporation could carry out employee monitoring with respect to the healthcare apps through a new update. The law requires that such monitoring will only be done after the employer gives notice of the same to the before coming enforcement. Also, based on the issue of the right to privacy, the employer in this case, is to inform the employee of any and all interceptions which will be made to communications and as to computer data. It also requires the employer to notify the employee of any and all unauthorised acquisitions on data. The company in this case uses monitoring systems that were developed by a person using a heavily infected computer with malicious hardware that allows unlicenced persons easy access to the private information of the workers.
The company stores not only GPS tracking information but with the new update, it will allow the employer access to the employees’ medical records and statistics stored within healthcare apps. This information is by all means private information as it is not publicly available. Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires that such interference and interception into ones use of applications be limited. These strict rules require that the interference should not only be limited but also secure. Thus, whereas the employer cannot use this version of the app for their attorneys. The company will simply not be able to protect the private information of its workers from being shared and accessed by other unwanted parties leading to an issue of data privacy violation.
Situation 2
Olive Glen New York Restaurants uses non-contact check drivers. The use of this along with the restrictions on spacing are in line with the requirements set out in the Public Health regulations. This is to minimise the spread of COVID-19 in the restaurant. The thermometers used do not show any precise figures as to one’s body temperature. This means that they do not breach the law by requiring or keeping medical records. Also, the use of the colours green and red to determine who gains entry into the restaurant and who is left out.
In the instant case, the use of these protocols is applied and implemented to restrict the entry of the plaintiff’s counsel into the discovery conference. He insists on not having his temperature taken which will be a violation of the Act. There is need to ensure that the people entering and taking part in the practise are all safe from COVID-19 infection. Thus, the defendant’s counsel cannot be allowed to enter the premises without having his temperature taken and recorded. The temperature records do not show exact numerical figures and will not breach the laws in place. The restaurant cannot refuse entry of the counsel merely based on how he acted as this does not amount to any clear indication of his medical state or that he poses a threat of possibly infecting or transmitting the COVID-19 virus.
Conclusion
In the first situation, the firm cannot use the updated version of the app to carry out the new function necessitated by the pandemic. The firm cannot carry out such an exercise without the notice on its attorneys and without ensuring that the data collected will be secure from external interference. In the second situation the restaurant cannot restrict the entry of the defendant based only on the presumptions seen from how he was reacting and will need to allow him entry if the temperature reads green.
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