The COVID-19 pandemic has now entered its ninth month in the United States. After extensive lockdowns in March and April 2020, cities and states around the country struggled with finding ways to reopen their economies without risking public health. Many New Jersey employees had to adapt quickly to a home office environment. Workers deemed “essential” had to continue reporting to their jobs, often with added safety measures intended to inhibit the spread of the novel coronavirus. Some of the new measures used by employers raise important questions about employee privacy rights in New Jersey.
New Jersey Workplace Privacy Laws
As a general rule, employees do not have an expectation of privacy when they are at work, on the clock, and using their employer’s property. Employers can, with some exceptions, access emails sent by employees using a company email address, or search employees’ desks and other areas in the workplace. Employees’ personal property, such as cell phones, purses, and wallets, are subject to greater legal protection.
New Jersey recognizes several common-law claims for privacy violations, including intrusion upon seclusion, which protects a person’s “private affairs or concerns.” With more workers doing their jobs remotely, often using videoconferencing technologies that allow employers to see into their homes, these concerns have become much more pressing.
The Equal Employment Opportunity Commission (EEOC) has issued guidance on the role of several federal statutes in the COVID-19 pandemic. The Americans with Disabilities Act (ADA), for example, regulates how employers may inquire about employees’ medical conditions. With regard to digital privacy, New Jersey prohibits employers from requiring disclosure of social media passwords, and the federal Stored Communications Act prohibits unauthorized access to emails and social media accounts.
Employee Privacy and COVID-19
As of the end of October 2020, New Jersey has seen a total of over 241,000 cases of COVID-19, and more than 16,000 deaths. Employers have an obligation to provide a safe work environment for their employees. They must balance this obligation with protection of workers’ privacy rights.
Many employers whose employees cannot work from home require health screenings at their worksites. As mentioned above, the ADA limits employer inquiries into employees’ health. Employers also have a duty to their other employees to keep an employee out when they are displaying COVID-19 symptoms. Taking employees’ temperature when they arrive at work is legally acceptable, according to the EEOC, as is asking about COVID-19 test results and requiring employees with positive results to stay home.
Employers may use analog methods of contract tracing, meaning they ask employees to state where they have been, or digital methods such as smartphone apps that track employees’ locations. Employees are entitled to notice regarding how their employer collects contact-tracing data, and how their employer will use that data.
Monitoring Remote Workers
A quick increase in the number of remote workers in New Jersey and around the country has caused much confusion for employers. Wage and hour laws like the Fair Labor Standards Act require them to keep track of employees’ activities during work hours. This can be difficult to do with a remote workforce. At the same time, employers must make minimal intrusions into their employees’ privacy.
The employment attorneys at the Resnick Law Group advocate for the rights of workers in New Jersey and New York in claims for privacy violations under federal and state law. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation with a member of our team.