Ernest Hemingway’s character Mike in The Sun Also Rises quipped that profound and seemingly inexorable change occurs “gradually, then suddenly.”
Change of Calculus
Before the pandemic, adoption of emerging technologies within the workplace—artificial intelligence (AI) and robotics—was often considered an investment in an organization’s future competitiveness. However, in the age of social distancing, implementation of emerging technologies is quickly proving essential to prevent additional operational disruptions and enable the return of workers while adhering to safety protocols.
Businesses are leveraging a range of computer vision tools, proximity sensors, thermal imaging cameras, robots, and predictive analytics to address COVID-19 workplace challenges. This article addresses those issues and includes some questions to help successfully transition from the current crisis.
Returning millions of employees safely back to work requires planning and precision in execution. Employers face myriad potential legal challenges. Specifically, workplace-acquired COVID-19 might lead to workers’ compensation claims and claims related to lax compliance with safety requirements, including provision of personal protective equipment (PPE).
On the other hand, going too far to prevent injury by infection could result in employers’ facing privacy and discrimination-related claims. The Equal Employment Opportunity Commission issued guidance earlier this year that employers may administer COVID-19 testing to employees reentering the workplace, thus emphasizing the ability and need for striking the right balance.
As the country opens back up, minimizing surface contact rates, testing, and maximizing space between employees will have many companies reconfiguring workspaces and looking to emergent solutions. Let us look at a few.
Machine Vision and Proximity Sensors
To facilitate workplace social distancing, Smartvid.io, an AI-powered enterprise risk assessment solution, recently released functionality for detecting close interactions and congregation of workers. Other technology vendors, like Drishti Technologies Inc., integrate worker proximity monitoring into safety and assembly monitoring solutions.
However, not all social distancing solutions and workplace safety technologies require the broad collection of sensitive employee biometric and personal data. For example, Proxxi recently introduced Halo, a wrist-worn sensor and band that vibrates to notify wearers that another band is within 6 feet.
With the goal of offering workplace safety technology solutions that are sensitive to compliance issues and privacy concerns, companies like Density.io and Halo are deploying proximity detection and contact tracing technologies that measure and monitor workplace social density, while limiting the capture or transmission of personally identifiable information (PII).
While employee-focused proximity sensors, AI-powered monitoring tools, and contact tracing applications may provide new capabilities to enhance workplace safety, it is imperative for employers to understand the risks incurred when adopting new technology.
To mitigate associated legal risks, HR departments should work with experienced legal counsel to ensure appropriate technology assessment and evaluation procedures are followed before its adoption and throughout the technology’s life cycle.
Thermal Imaging Cameras
Thermographic cameras—also known as infrared or thermal imaging cameras—can detect body and object heat signatures. Thermal imagery is the operative technology enabling hand-held, noncontact thermometers, the variant of the technology that has been most widely deployed at workplace points of entry.
When layered with machine vision software, thermal imaging can be used for automated detection and assessment of individuals within groups. As businesses begin to reopen, employers ranging from food production to fulfillment centers to grocers and casinos are increasingly modifying workplace safety procedures and leveraging thermal imaging technology to actively mitigate the introduction and spread of the coronavirus in the workplace.
Adjusting to a new normal in a highly fluid environment presents many challenges for employers. Thermal imaging cameras and full-body thermal scanners may initially appear to provide an efficient safety screening option for employers.
However, these tools raise privacy, biometric data collection, and data retention concerns that should be carefully examined before adoption. These issues will continue to persist long after the technology’s adoption, and recurring evaluation procedures should be drafted and implemented to mitigate potential liability exposure.
Measuring an employee’s body temperature, whether via a handheld thermometer or telescopic thermal imaging camera, is considered a medical exam and employers need to maintain confidentiality of the information. While recent U.S. Equal Employment Opportunity Commission (EEOC) guidance allows employers to measure an employee’s body temperature during the pandemic, employers should be cautious about continued use of the practice in a post-pandemic workplace.
Warehouses, hospitals, and grocers alike are leveraging robotics to increase workplace safety. Industries are adopting autonomous mobile robots at an accelerated pace to help with moving materials between workspaces; for sanitation and cleaning; and for delivery of essential tools, food, and medicines for battling the virus.
Return-to-work protocols may require maintaining a minimum 6-foot distance from others; separation of individual workstations; and frequent disinfecting of break rooms, bathrooms, and other common areas.
As airlines start booking more brave passengers, the use of PPE and heavy plane sanitation will be the norm. Dimer’s GermFalcon UV-C robots, designed to disinfect airplanes, and Avalon Biomedical’s vaporized hydrogen peroxide robot, for deep cleaning of airports, are examples of robots delivering greater safety and efficiency.
As more hotels and restaurants open post-pandemic, expect to see continued adoption of robots for check-ins and room service deliveries. Robots are making safer the lives of essential workers and the customers and patients they serve.
In manufacturing, pharmaceutical, food processing, and construction industries, collaborative robots (cobots) already work alongside human workers to augment and improve employees’ productivity by replicating dull and repetitive tasks with precision. Businesses that have already adopted cobots into their operations are reaping the additional benefit of creating and allowing distance between workers with little or no need to alter a facility’s existing floor plans or infrastructure.
HR Considerations When Evaluating New Technologies
Companies seeking to adopt new technologies to improve workplace safety and operational integrity should conduct periodic evaluations throughout the life cycle of a technology’s use to ensure maximum compliance of applicable laws in every jurisdiction in which they operate. Recurring examination of emerging technology in the workplace is particularly important in the context of data-driven HR decisions and biometric information collection.
Below is a high-level overview of pressing initial evaluation questions that will affect the complexity of the legal compliance and validation process, as well as help legal counsel make an informed initial assessment of the potential legal risks and practical benefits of technologies like proximity sensors, thermal imaging scanners, AI-powered biometric analytics, and contact tracing tools.
- What data sources have been or will be used?
- What forms of internal and vendor documentation exist relating to the applicable technology?
- Does the technology analyze, collect, or store employee biometric or personal identifiable information? Will the employee data be obtained voluntarily and with the employees’ informed consent?
- What roles do various employees (e.g., HR staff, supervisors, and legal) play in collecting or acting upon data-driven decisions?
- If supervisors or other individuals with decision-making authority are involved, what steps are taken to ensure they did not gain access to sensitive or protected information regarding employees?
- To what extent has the technology been evaluated to comply with applicable discrimination, employee privacy, and data protection laws?
- Has the company structured and implemented a recurring technology monitoring plan to periodically check to ensure its use is in accordance with best practices?
These questions—along with their answers—will help employers transition to the post-COVID-19 environment. Employers should carefully consider all of the factors addressed above to ensure they are best prepared to operate effectively in the new normal.
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