• Dr. Soumi Eachempati

Is your symptom monitor compliant with incoming regulations?

Updated: Jun 25

Employers will soon have something new to worry about: new legislation creating more mandates around symptom monitoring in the workplace.

Recently, the federal government has mandated that employers monitor and document the flu-related symptoms of their employees as they return to workplace. This well-intentioned requirement was to ensure that symptomatic employees for Covid-19 would be quickly recognized and quarantined at home.

Within the last week, two groups, one led by Senate Republicans and the other by House and Senate Democrats, have both introduced new bills aimed at regulating the method of symptom monitoring for these employers. The purpose of these bills is aimed at protecting consumers’ personal health information during this pandemic. Notably, the two bills specifically exclude protections already covered by HIPAA.

Broadly, the areas likely to be included are the ability for the consumer to revoke consent for the initiative at a later date and the need for the employer to issue public information regarding the data. While other areas have some specific differences, the likelihood of controversial areas being included are less when one political party has the House and the other controls the Senate.

Employers have reacted in various ways to this mandate and the other federal regulations surrounding return-to-work initiatives. Some have allocated major resources to teams that can create ways to comply with all these regulations. Others have complied with the ones that their current resources will allow. Finally, others have either decided to ignore them as being too onerous, kept their employees at home, or shuttered their businesses.

Regarding symptom monitoring, conscientious employers have found there are basically two options to keep in compliance. They can either use internally or externally developed software that can query their employees regarding their symptoms. Other employers merely have their employees fill out their symptoms on old-fashioned pen and paper. The latter group of employees generally chose their tactic due to budget constraints related to not having the teams necessary to search the software options or the funds allocated to paying for them. A proportion of them also perceived that the software options may have been too sophisticated for enough of their employees and the training aspects were burdensome.

Importantly, the two bills have some common ground. Naturally, when bills by different parties have some common ground and the bills are perceived as necessary, the final bill will reflect the common ground particulars and the bill will be passed with both sides claiming victory for their constituents.

This latter requirement will put a tremendous burden on employers who will have to parse through the data and tabulate a great deal of information including the number of individuals whose data has been collected, the categories of information collected, the purposes for which each data category is used and the categories of recipients to whom the data is disclosed.

Companies of any reasonable size that tabulate the data manually on pen and paper will have major issues creating a public record answering these requirements. Other companies that are using more automated strategies will have to hope that their software is capable of such queries and data analysis. Companies that use more sophisticated software will be rewarded while companies without the initial investment will be pressed later on. These reports may actually be useful in alerting public health authorities regarding the value of these data as well as the spread of Covid-19 and may alter the need of the requirements or enhance the safety of the employees.

Naturally, no time frame for the passage of this legislation exists although both parties seem anxious to create some consumer protections in the near term. Nonetheless, companies that make the investment for stronger long-term solutions can know they are investing in the future viability of their companies and the health of their employees, while maintaining compliance in upcoming legislation.

https://www.jdsupra.com/legalnews/republicans-and-democrats-introduce-58345/

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