Employee Snooping: Your Employees' Temptations = Your LiabilityAs we noted in late January 2020, the spread of infectious disease raises particular concerns for healthcare workers who want to do their jobs and care for their patients, while also protect themselves and their families. Perhaps the desire to protect one’s self and family is what motivated a California state healthcare worker to access COVID-19-related health records of more than 2,000 current and former patients and employees over a ten-month period.

Regardless, this data breach should be a reminder for all organizations that (i) compromises to personal information of whatever kind are not only caused by criminal hackers, and (ii) considering all the personal health information being collected by organizations in connection with COVID-19 screening, testing, and vaccination programs, this is not a problem limited to health care employers.

In the healthcare sector, as with prior contagious disease outbreaks, fears about contracting the virus could lead to impermissible “snooping” and sharing of information by healthcare employees. According to a press release and published FAQs, an employee of Atascadero State Hospital with access to the hospital’s data servers as part of the employee’s information technology job duties improperly accessed approximately 1,415 patient and former patient, and 617 employee names, COVID-19 test results, and health information necessary for tracking COVID-19. The hospital discovered the breach on February 25, 2021, and, evidently, the employee’s improper access had been ongoing for 10 months.

Of course, HIPAA covered entities and business associates should be taking steps to address this risk. Such steps include, for example, continually reminding workforce members about access rights and the minimum necessary rule, which are required under HIPAA’s privacy and security regulations. At times, unauthorized access may be difficult to identify, particularly where employees have a need for broad access to information. In the case noted above, the breach was discovered as part of the hospital’s annual review of employee access to data files. Reviewing system activity generally is a good idea for all organizations, taking into account relevant threats and vulnerabilities to shape frequency, scope, and methodology.

The Office for Civil Rights has issued bulletins addressing HIPAA privacy in emergency situations, such as one in November 2014, during the Ebola outbreak, and one in February 2020 for the coronavirus. These bulletins provide good resources and reminders for health care providers when working in this environment.  They also convey helpful considerations for all organizations handling sensitive personal health information.

During the past 12 months, organizations have collected directly or through third party vendors massive amounts of data about employees. Examples include data collected during daily temperature and symptom screenings, COVID-19 test results for contact tracing purposes, and now vaccination status. Some organizations have used thermal imaging cameras that leverage facial recognition technology to screen, while others have rolled out newly developed devices and apps to manage social distancing and facilitate contact tracing efforts. We now are seeing systems being rolled-out to track and incentivize vaccinations. All of these activities involve the collection and storage of personal information at some level.

Organizations, whether covered by HIPAA or not, engaged in these activities should be thinking about how this information is being safeguarded. This includes assessing the safeguards implemented by third party vendors supporting the systems, devices, and activities. Again, these efforts should not be focused only on systems designed to prevent hackers from getting in, but what can be done internally to prevent unauthorized access, uses, and disclosures of such information by insiders, employees.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.