In this episode of the Diagnosing Health Care Podcast, dive into the Biden Administration’s first 100 days in office and the potential executive orders, regulations, and new legislation with noteworthy health care policy implications.

Epstein Becker Green attorneys Ted Kennedy, Philo Hall, and Paulina Grabczak discuss President Biden’s priorities, including his COVID-19 response plan, and examines which “midnight rules” put in place by the Trump Administration could be intercepted or retained.

The Diagnosing Health Care podcast series examines the business opportunities and solutions that exist despite the high-stakes legal, policy, and regulatory issues that the health care industry faces. Subscribe on your favorite podcast platform.

Listen on Apple PodcastsGoogle Podcasts,
Overcast, Spotify, Stitcher, YouTube, and Vimeo.

On January 14, 2021, the U.S. Department of Justice (DOJ) reported its False Claims Act (FCA) statistics for fiscal year (FY) 2020. More than $2.2 billion was recovered from both settlements and judgments in 2020, the lowest level since 2008 and almost $1 billion less than was recovered in 2019. The total recoveries in 2020 reflect the first of many anticipated resolutions of fraud enforcement actions in the COVID-19 world, and over 80% of all recoveries—amounting to almost $1.9 billion—came from the health care and life sciences industries.


Significantly, 2020 saw the largest number of new FCA matters initiated in a single year. The government initiated new FCA matters at its highest rate since 1994, with 250 new cases brought in 2020. Strikingly, the number of government-initiated cases against health care entities more than doubled from 2019 to 2020 and was at the highest level ever reported. Likewise, qui tam relators filed 672 new matters in FY 2020, an increase over FY 2019 and the fifth highest number of cases in reported history. Qui tam relators filed, on average, almost 13 new cases a week. Of the 672 qui tam cases filed, 68% were related to health care.


Total recoveries from qui tam-initiated actions generated almost $1.7 billion. While the largest recoveries continue to come from cases where the government intervenes, cases pursued by relators post-declination generated more than $193 million in FY 2020, the fifth largest annual recovery in non-intervened cases since 1986. These cases continue to be rewarding for relators; over $309 million in relators’ share awards were paid in FY 2020, of which more than $261 million were paid in cases pursued against health care entities.

Continue Reading DOJ False Claims Act Statistics 2020: Over 80% of All Recoveries Came from the Health Care Industry

The Department of Justice (DOJ) announced on January 12, 2021, the first civil settlement to resolve allegations of fraud against the Paycheck Protection Program (PPP) of the Coronavirus Aid, Relief, and Economic Security (CARES) Act.[1] SlideBelts Inc. and its president and CEO, Brigham Taylor, have agreed to pay the United States a combined $100,000 in damages and penalties for alleged violations of the False Claims Act (FCA) and the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA).[2]

The CARES Act was enacted in March 2020 to provide emergency financial assistance to individuals and businesses affected by the COVID-19 pandemic.[3] The CARES Act established the PPP, which provided $349 billion in forgivable loans to small businesses in order to assist in job retention and business expenses.[4] Since March 2020, Congress has authorized an additional $585 billion in PPP spending to be distributed under the Small Business Administration (SBA).

SlideBelts operates as an online retail company, and filed a petition for relief under Chapter 11 of the Bankruptcy Code in August 2019. Between April and June of 2020, while its petition was pending in the U.S. Bankruptcy Court for the Eastern District of California, SlideBelts and Taylor allegedly made false statements to federally insured financial institutions that the company was not involved in bankruptcy proceedings in order to influence the institutions to grant, and for SBA to guarantee, a PPP loan. SlideBelts received a loan for $350,000 based off of these purported false claims, which SlideBelts repaid in full to the PPP.

The government was able to recover damages and civil penalties from SlideBelts under the FCA for submitting alleged fraudulent claims for payment to the government and under the FIRREA for violations of federal criminal statutes that affect federally insured banks. This settlement is the end result of the first, but not the last, of many civil investigations and, ultimately, litigations relative to the CARES Act in the coming months and years under the FCA. In fact, during a June address to the Chamber of Commerce, Principal Deputy Attorney General Ethan Davis stated, “Going forward, the Civil Division will make it a priority to use the False Claims Act to combat fraud in the Paycheck Protection Program.”[5]

As the SBA prepares to issue a second round of PPP loans, the DOJ is likely to continue to use the FCA and the FIRREA to pursue entities receiving funds on the theory that those entities intend to exploit for their benefit these federal programs.[6]

Continue Reading First Reported FCA CARES Act Settlement Announced

This Diagnosing Health Care episode examines the fraud and abuse enforcement landscape in the telehealth space and considers ways telehealth providers can mitigate their enforcement risks as they move into the new year. Hear how the uptick in enforcement warrants close consideration by telehealth providers, especially those that are new to the space and have not yet built their compliance infrastructures.

The episode features Epstein Becker Green attorneys Amy Lerman, Melissa Jampol, and Bonnie Scott.

The Diagnosing Health Care podcast series examines the business opportunities and solutions that exist despite the high-stakes legal, policy, and regulatory issues that the health care industry faces.

Listen on Apple PodcastsGoogle Podcasts,
Overcast, Spotify, Stitcher, YouTube, and Vimeo.

The U.S. Supreme Court will consider whether the federal government can approve state programs that force Medicaid participants to work, go to school, or volunteer to get benefits. Both Arkansas and the Justice Department sought review of the issue. Epstein Becker Green attorney Clifford Barnes provides potential paths for the Biden administration to best position itself in the case.

The U.S. Supreme Court will hear oral argument in a case involving the authority of the Department of Health and Human Services to approve Medicaid work requirements programs in Arkansas and New Hampshire that were struck down by the U.S. Court of Appeals for the District of Columbia Circuit.

The high court has agreed to determine whether the HHS can allow states to impose work requirements in its Medicaid program even though all lower courts ruled against HHS’s approval of states’ Section 1115 work requirement waivers, based on the Trump administration’s refusal to consider the impact of the waivers on the core purpose of Medicaid—which is to increase health insurance coverage.

Unlike the narrow question considered by the lower courts, however, the court granted certiorari on a much broader issue. The question presented concerns the entire Section 1115 process and asks whether the HHS secretary has the power to establish additional purposes for Medicaid, beyond coverage.

Should the court rule that the HHS secretary does indeed possess this unbounded power, the entire Section 1115 landscape could shift, potentially allowing states to implement waivers like Arkansas, so long as they meet such additional purpose.

The case establishes an effective deadline for the Biden administration to take action to mitigate or eliminate the work requirements, in light of the administration’s commitment to expanding, rather than rolling back, Medicaid insurance coverage.

Continue Reading How the Biden Administration Can Reverse Trump’s Medicaid Work Requirements

On January 5, 2020, HR 7898, became law amending the Health Information Technology for Economic and Clinical Health Act (HITECH Act), 42 U.S.C. 17931, to require that “recognized cybersecurity practices” be considered by the Secretary of Health and Human Services (HHS) in determining any Health Insurance Portability and Accountability Act (HIPAA) fines, audit results or mitigation remedies. The new law provides a strong incentive to covered entities and business associates to adopt “recognized cybersecurity practices” and risk reduction frameworks when complying with the HIPAA privacy and security standards to reduce risk associated with security threats and HHS enforcement determinations. Specifically, the earlier adoption of an established, formalized and recognized cybersecurity framework, may significantly insulate entities from regulatory enforcement in the wake of subsequent security incidents or data breaches.

The amendment mandates that when making determinations relating to fines, decreasing the length and extent of audits, or agreeing to mitigation remedies, the Secretary shall consider whether an entity “has adequately demonstrated that it had, for not less than the previous 12 months, recognized security practices in place that may”:

(1) mitigate the imposition of fines under section 13410 of the HITECH Act;

(2) result in the early, favorable termination of an audit under 13411 of the HITECH Act; or

(3) mitigate remedies that would otherwise be agreed to in any agreement with respect to resolving potential violations of the HIPAA Security Rule between the covered entity or business associate and HHS.

The term “recognized security practices” means “the standards, guidelines, best practices, methodologies, procedures, and processes developed under section 2(c)(15) of the National Institute of Standards and Technology (NIST) Act, the approaches promulgated under section 405(d) of the Cybersecurity Act of 2015, and other programs and processes that address cybersecurity and that are developed, recognized, or promulgated through regulations under other statutory authorities. Such practices shall be determined by the covered entity or business associate, consistent with the HIPAA Security Rule.” Consistent with the HIPAA Security Rule, this broad definition affords covered entities and business associates flexibility to implement reasonable and appropriate “recognized security practices” consistent with the size, scope and complexity of their organizations. Recommended starting points to identify recognized security practices would be to leverage NIST Special Publication 800-66 rev.1 and Health Industry Cybersecurity Practices (Managing Threats and Protecting Patients).

In light of the protective impacts of this new law, organizations that have not yet adopted “recognized security practices,” should consider doing so now. A strong first step to selecting reasonable and appropriate security practices involves conducting risk-based assessments of likely security threats, threat actors and vulnerabilities. Based on the findings of such an assessment, organizations can then identify possible countervailing recognized security practices that can decrease the risk of a security incident or data breach occurring in the first instance, and reduce risk of follow-on regulatory enforcement. Under the new HITECH Act amendment, adoption of recognized security practices may beneficially impact determinations of the level of fines and other enforcement measures in the event of a later data breach or other violation. EBG works closely, under attorney-client privilege, with organizations to conduct risk assessments and to identify recognized security practices that may bolster practical security and improve compliance defensibility.

Epstein Becker Green (“EBG”) has released Value-Based Payments: A Comprehensive State Survey.

EBG has researched, compiled, and analyzed state-specific content about the regulatory requirements involved in providers moving away from fee for service reimbursement (such as discounted fees and per diems) and towards value-based payment arrangements involving “downside” risk or insurance risk-sharing with insurers, HMOs, and other types of state-regulated health plans. Some types of risk-sharing arrangements include capitation, shared savings and losses, and percentage of premium reimbursement.

Each state regulates insurance risk-sharing arrangements differently—some regulate only prepaid compensation models, some regulate all forms of risk, and some also regulate intermediary network entities which assume risk on behalf of networks.

Featuring contributions from attorneys Jackie Selby, Gregory R. Mitchell, and Ashley A. Creech, this survey is EBG’s most comprehensive compilation of state laws, regulations, and policies with respect to risk-sharing types of value-based payment arrangements.

Click here to access the survey in PDF format: Value-Based Payments: A Comprehensive State Survey

Our colleague Melissa L. Jampol of Epstein Becker Green has a new post on the Commercial Litigation Update blog that will be interest to our readers: “Opioids, Sober Homes and ‘Telefraud’: An Overview of the DOJ 2020 Healthcare Fraud Takedown.”

The following is an excerpt:

As we have previously reported, opioids have been a large focus of DOJ in the past few years in an attempt to stem the opioid epidemic through increased enforcement and this takedown is a continuation of those efforts. DOJ stated that the charges involved in the opioid-related takedown involved the submission of $800 million in false and fraudulent claims to Medicare, Medicaid, TRICARE, and private insurance companies for treatments that were allegedly medically unnecessary and often never provided. DOJ also continued the trend of charging medical professionals with the illegal distribution of opioids (or operating pill mills). Providers need to be mindful of safe opioid prescribing guidelines, develop and implement rigorous compliance programs, and keep up to date on ever shifting federal and state laws in this area.

Over the past few years, we have been predicting that telehealth is ripe for enforcement. Although we have seen enforcement activity involving telehealth providers in the past, this is the first time that DOJ/HHS has focused so sharply on telehealth providers as the target of a major takedown. The 2020 Takedown is a warning to those in the telehealth industry to pay special attention to compliance infrastructures and efforts especially as use of telehealth to serve patients expands, and related regulations loosen in light of the COVID-19 pandemic.

Click here to read the full post on the Commercial Litigation Update blog.

Ransomware basics

Ransomware is a serious form of cyber extortion that employs malware to prevent users from accessing their systems or data, either by locking the system or encrypting critical files until a ransom is paid. The hacker holds the key to unlock the system and usually demands payment in cryptocurrency.

Ransomware has been a known cyber threat vector for over a decade. In recent years, hackers have embraced increasingly sophisticated methods to exploit vulnerabilities and introduce ransomware into systems. They have also expanded the scope of impact by targeting enterprise-wide systems and databases, crippling many companies across industry sectors, including healthcare. Recently, the Federal Bureau of Investigation (FBI), U.S. Department of Health and Human Services (HHS) and the Federal Cybersecurity and Infrastructure Security Agency (CISA) released a report calling attention to the rampant ransomware activity targeting the healthcare sector.

Lessons learned from impact in healthcare

Ransomware affects companies of all shapes and sizes across all industry segments, but there have been several high-profile cases where healthcare companies were infected by ransomware and held hostage for millions of dollars in ransom. These companies were temporarily forced to shut down operations, turn away patients, and attempt to work on paper-based records. Ransomware is uniquely problematic in healthcare settings where disruption of IT systems can directly harm patient safety.

The human factor

Human error is still one of the primary reasons ransomware infects systems.

Ransomware attacks typically begin by phishing or spoofing, fooling users into downloading malware by opening infected emails, clicking on attachments, or visiting illegitimate webpages. Hackers similarly entice users to click on catchy banner ads that may appear legitimate, but actually trigger a download of ransomware. One predominant example of ransomware is called “Ryuk” and you can read about how it works here.

Requested ransom has been known to vary greatly, and can increase dramatically depending on the target and sensitivity of the systems or files that have been encrypted.

What can you do to protect against ransomware?

In the past, ransomware focused on localized attacks like locking down a target’s keyboard or computer, but more recently hackers have expanded to encrypting enterprise-wide networks and file shares, rather than individual endpoint devices.

Key mitigation activities may include:

  1. Employ reputable antivirus software and strong firewall. A company should maintain a strong firewall, and keep its security software patched and updated at all times. This prevents ransomware from entering the system. Companies should also use strong next generation antivirus software, which regularly scans the networks for signature-based malware as well as uses behavioral analysis to ferret out ransomware.
  2. Back up often. A company should regularly back up files to minimize risk of data loss. This reduces the impact of ransomware, as impacted systems can be disconnected, shut down, wiped and restored using backups.
  3. Enable website popup blockers. Popups are a prime tactic used to conduct ransomware attacks. Company web browsers are configured to prevent popups by default. Company personnel should also be trained on phishing and malware prevention.
  4. Enable proxy blocking. A company should set website filtering rules to block website software and access to certain domains. Proxy blocking also has the ability to block downloadable content from websites. This approach prevents users from inadvertently visiting malicious website or downloading malicious files.
  5. Limiting file sharing. A company’s sensitive data should be segregated from its organizational and operational data. Sharing of sensitive data has been restricted to the highly secure production environment.
  6. Patching and installing the latest versions of critical software: Companies should apply security patches on an ongoing basis, which can significantly reduce vulnerability and blunt the impact of ransomware.
  7. Employ secure Internet and email practices. Organizations should block certain file extensions sent by email, especially executable files like .exe, .js, and .wsf. They should also scan contents of certain compressed files like .zip files. Users can be trained not to click on links inside suspicious emails and to avoid visiting suspicious websites.
  8. Conduct ongoing security training. A business should routinely train its personnel on malware, hacking threats, and best cybersecurity practices. Employees should be trained to be cautious with emails and requests for personal data (especially login information). Personnel should also be careful when opening email attachments or clicking on links in emails, no matter the sender, and should check that the website they are visiting is secure (look for a URL that starts with https://”—”s” for security—rather than just http://).

What do you do if you suspect a system is infected with ransomware?

  • First, report the suspicious activity to the Legal Department and IT security.
  • Follow incident response policies and procedures.
  • If possible, disconnect from the internet immediately to reduce the risk of the hacker remaining in the system, spread of the ransomware in the network, and exfiltration of sensitive data.
  • Shut down the computers or servers that have been infected.
  • Do NOT negotiate or pay the ransom amount. This should be determined by your organization’s leadership in consultation with legal counsel, law enforcement, and its insurance company.
  • Cooperate fully in any follow up investigations conducted by the company as well as government agencies like the FBI Cybersecurity Task Force.

As employers continue their efforts to safely bring employees back to the workplace, many have moved beyond initial pre-entry wellness checks or questionnaires and are considering technology solutions that monitor social distancing and conduct contact tracing in real-time. Along with introducing these enhanced capabilities, the question of the privacy and security of employee personally identifiable information (“PII”) and protected health information (“PHI”) continues to loom.

In order to isolate and contain the spread of COVID-19, one critical component of an effective workplace safety plan is for employers to be able to monitor social distancing practices and to notify employees that they need to self-quarantine if they have come in close contact with an individual in the workplace who has symptoms of, or tested positive for, COVID-19. Also known as “contact tracing”, the faster that affected individuals can be notified and isolated the slower the virus will spread. Technology developers have stepped up to automate the contact tracing process and there has been a proliferation of mobile tracking tools, including phone apps that monitor social distancing practices and conduct contact tracing in near real-time that can be used in the workplace. Yet, these tools raise an intricate web of considerations under applicable privacy, security and other consumer protection rules and regulations.

The following addresses common questions employers are currently facing:

  1. Are employers required to use HIPAA-compliant mobile tracking tools in the workplace for social distancing and contact tracing purposes?

Even though the information about an individual’s COVID-19 status may be health related, as a general rule, employers are not covered entities regulated by HIPAA. That being said, employers should make efforts to limit the amount of information being collected to serve the intended goals and not retain it longer than needed. For example, an employer interested in adopting an app approach for contact tracing may want to consider an app that relies on Bluetooth technologies rather than geo-tracking capabilities so that they can provide a notification to individuals who have come in close contact with an affected individual rather than the specific geographic location information about employees or specific status of individuals.

  1. How can my organization implement mobile tracking tools without collecting medical information or PHI?

An employer who wants to limit data collection can deploy mobile tracking technological tools, such as lanyards or wrist bands worn by employees in the confines of the workplace, which can be used to identify an employee’s location in the workplace throughout the work day and used to identify close contact with other individuals to remind employees to maintain a safe distance from others. With respect to contact tracing, these tools do not have to collect medical information or PHI. Many rely on an employee self-reporting that they are experiencing symptoms of COVID-19 or that they tested positive for COVID-19. This would cause the sensors in the lanyard and located throughout the workplace to identify the other employees that would need to be notified that they may have come in close contact with someone who reported symptoms or tested positive for COVID-19, and the areas in the workplace that the exposed individual had been to ensure that those areas are cleaned and appropriately sanitized.

  1. How could a non-HIPAA compliant mobile tracking tool collect PHI (such as COVID-19 test results)?

An individual may authorize a health care provider, like a lab or their physician, to disclose their electronic PHI through a mobile application that is not subject to HIPAA requirements. The authorization must meet HIPAA’s requirements for a valid authorization and, if an employer requires the use of a mobile app that relies on such authorization, the employer should also provide clear notice to employees about what information will be collected, how it will be used, with whom it will be shared, and how long it will be retained. Employers should review the terms of service for any tools they seek to deploy to determine if there are options that should be disabled or whether employees must take action on their devices to disable certain functions. Employers should also consider whether an alternative for employees that might need an accommodation is needed if they are unable to use the mobile app that the employer wishes to deploy.

  1. How can my organization vet mobile tracking tools?

From the outset, it is important to undertake diligence regarding the vendor providing the tool or app. Some technology developers may be well-established companies with robust privacy and security procedures and controls, while others may be entities that have not yet invested in, or developed compliant, procedures and controls. It is also critical to undertake diligence regarding the manner in which the information and data transmitted to, collected and stored by the tool or app will be handled. Consider asking the vendor the following types of questions:

  • What information is collected through the tracking tool or app and is it encrypted?
  • Will the vendor company utilize any information collected through the tool or app for any purpose (e.g., for research, analytics, marketing, or whether it can be sold)?
  • Is the information collected through the tool or app shared with any third parties (including public health authorities)?
  • Does the tool or app send data to any domestic government (or international) sites or apps?
  • How is the information obtained?
  • Is the information actively or passively (through the user’s URL or web behavior) collected?
  • Does the tool or app utilize Bluetooth technology (e.g., proximity notification) or GPS (location identification)?
  • Who owns the data?
  • How long will the data be kept, where will it be retained and what safeguards will be in place to protect it? (e.g., data back-up, disaster recovery and/or contingency plans)?
  • What security and privacy standards/protections does the vendor have in place for its tools or apps?
  • What data breach notification requirements does the vendor have in place?
  • What happens if there is a breach?
  • Does the vendor carry cyber insurance?
  • Has the app developed user friendly notifications with information for employers to pass along to employees that will instruct them on how to download the app to their phone, including an appropriate Privacy Notice and instructions on how to mitigate risks, for example instructions on how to disable the app from connecting to other functions on their phones?
  • Does the app itself include a notice that comports with the organization’s requirements to obtain consent from employees to collect information and proper consent to share the information with their employer?

It is critical to verify that the data is retained only for the required amount of time, and meets requirements for each state and locale in which your organization has reporting obligations. It is necessary to review the tool or app’s privacy policies and service agreement terms and, to pay careful attention to the vendor’s service agreement representations and any carve outs for adherence to applicable law. Given the evolving laws in this area, as well as the evolving definition of “close contact”, it is also important for employers to stay abreast of changes that may impact the tools and apps in use and address any updates that may need to be made. In the event that a vaccine is widely distributed and accepted by employees, contact tracing efforts may become moot.

  1. How can individuals protect their personal data when using mobile tracking tools for social distancing and contact tracing purposes?

Though most contact tracing tools and apps are unlikely to be covered by HIPAA, employers should ensure that they obtain clear, conspicuous, and specific consent/authorization from the employee to obtain and store their data, and specific requirements to do so will vary based on applicable state law. In theory an employee could limit his or her employer’s right to access only certain types of data (including non-PHI data). To enable an employee to do so, the employer should ensure that the app authorization can be tailored to permit such narrow authorization. Otherwise, with most app authorizations being provided via click wrap text, it is unlikely that an individual can modify the authorization to limit such data access.

To the extent the mobile tracking tool or app seeks to collect PHI, the new Interoperability Rules place the burden on the individual to decide whether they would like to share their PHI with a third party. These Rules permit individuals to access and transfer their electronic protected health information (“e-PHI”) to mobile apps and other tracking tools through application programming interfaces (“APIs”). The Office of the National Coordinator for Health Information Technology (“ONC”) Final Rule, which became effective on June 30, 2020, requires developers of certified health IT to include secure, standards-based APIs to support patients’ access and control of their e-PHI.

  1. What is the best way for an employer to approach contact tracing in the workplace?

 Since many Americans spend a significant portion of time at work, employers are uniquely situated and can play an important role in slowing the spread of COVID-19. As such, state re-opening plans require employers to develop a plan to bring employees back to the workplace safely. But without authority from a federal or state mandate to use an app to contact trace, employers face a number of legal challenges.

If the employer offers an app as a value added feature of its group health plan, the data becomes HIPAA protected and the app developer has to agree to enter into a BAA with the health plan. The data would then become part of the group health plan, which makes data sharing from the health plan back to the employer complicated because: (i) the health plan cannot report individual employee health information back to the employer; and (ii) any aggregated and de-identified sharing would have to comport to all of the company’s and employee’s state/city/county authority data sharing and reporting requirements.

To address privacy concerns, employers should collect only the data that is needed to know when an employee is suspected or actually infected by the virus so that other employees that have been exposed to the infected employee can be warned of their potential exposure and can be instructed to take measures to isolate and get tested.

Employers should be mindful that, as with any collection of sensitive data, information can be hacked. Contact tracing apps and technologies could collect personal information, including information considered medical or biometric identifiers, that is potentially subject to state breach notification laws.

Finally, being transparent, clear and frequently communicating about any changes goes a long way in helping employees understand the important role they play in keeping themselves, their families and their fellow employees safe.

  1. Are state government apps that have been developed for contact tracing purposes required to be HIPAA-compliant?

No. The information collected through apps developed and deployed by state governments is being used for a public health service. State government apps rely on individuals voluntarily downloading the app to their device. Generally, these apps can use Bluetooth to sense close contacts and exchange a secure random code with the close contact’s phone. These apps can also use the positive COVID-19 test results reported to the state and Bluetooth to recognize when one individual who has downloaded the app has been exposed to another individual who has tested positive for the virus and send an anonymized exposure alert to close contacts.

  1. Are employees tracked when they leave the workplace site and travel for business domestically? What about internationally?

Perhaps. The details of data collection depend upon the design of the mobile tool or app and the authorization provided by the individual. Inadvertent data collection or use may heighten an organization’s compliance risk.

  1. If employees work remotely, is contact tracing necessary?

 Employers may need to consider application of mobile tracking tools to remote- work employees.  Protocols should consider work schedules which include hybrid work arrangements and any business travel to other employer work locations.

  1. Must the mobile tracking tools track employees nationally and internationally? Should employers track employees 24/7?

It depends upon the goal of the organization’s contact tracing, and its governmental and regulatory reporting requirements. Arguably, contact tracing can best work when all movement is tracked and data is provided back to individuals in real-time about exposure risk. However, this must be balanced with privacy and security concerns. Limiting data collection for contact tracing purposes to the employee’s location within the confines of the workplace during the regular work day would be the least invasive.

  1. Do employees have rights to have their data deleted or will it reside indefinitely in a larger data set (Big data?)

Data retention depends upon obligations in state law/international law. A definitive timeline for data retention is not entirely clear at this time. So, employers should hold onto the data for now. However, employers should review and update their data retention policies as federal, state, and international guidance is issued and applicable statutes of limitations are analyzed. Some technologies may also allow individuals to delete their data and these should be evaluated. Employers should keep any data retained separate from employee personnel files and it should not be used for employment purposes.

  1. What types of updates should employers make to their privacy and security policies to address use of mobile tracking tools in the workplace and breach response procedures?

Employers should ensure that their privacy and security policies address the types of tools and apps utilized. Specific changes will depend upon the type of tool or app utilized, the data collected, and whether the tool or app is administered internally or through an employer’s health plan.

  1. What can an employer do to mitigate risk? 

Vet the mobile tracking tool or app vendor and developer and the tools or apps themselves to ensure that they comply with the organization’s applicable reporting policies and applicable privacy and security laws. Then, review the service agreement with the vendor or provider and any authorization that the employee may be required to sign to ensure compliance with applicable law. The employer may also want to review their cyber insurance policies and make sure that the terms of services and other agreements appropriately allocate cyber risk and breach responsibilities between the parties and that the vendor has adequate cyber/breach coverage.

As with implementing any new organization-wide policy, employers should consider developing communication or a training session where employees can be provided with information about the technology, a notice that is clear and understandable, and affords them the opportunity consent to participate by agreeing to download the app or activate the technology.

  1. What should an employer do next?

All employers and organizations are grappling with re-opening and the social distancing and contact tracing requirements for employees returning to the workplace. Employers must carefully consider the privacy and security implications of using mobile tracking tools and apps because these technologies may remain active in the workplace for the foreseeable future and will likely shape how workplace surveillance technology will be used in the future. Therefore, employers should be mindful to vet the apps they choose, review the service agreements and negotiate the privacy and security provisions to ensure that personal information is protected and used appropriately and that the appropriate cyber breach protocols are in place. For organizations that have already deployed these tools and apps without evaluating these considerations, it would be advisable to revisit these issues and address them. As the law changes, consideration should also be given to re-evaluating whether the tool or app remains compliant. Organizations should also develop a communications plan for employees in order to address their concerns about utilizing these tools and apps, educate them on how their data is protected and cybersecurity best practices, and obtain any required consents.