Ask the legal expert: restricting employee cell phone use to protect patient privacy

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Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP
There have been accounts of nursing home employees misusing their cell phone cameras, violating resident privacy. How restrictive can we get about employees using cell phones–and especially, their cameras?

Camera phones in the workplace are increasingly problematic for employers, especially in nursing homes and other healthcare facilities. Last February, a Milwaukee hospital fired two nurses for taking pictures of a patient's X-ray with their camera phones and posting them on Facebook—a clear violation of patient privacy. Camera phone usage also can endanger the privacy of fellow employees, as well as other confidential facility information.

Generally, employers can ban camera phones from the workplace. Neither the First Amendment nor “the right to privacy” prohibit private employers such as nursing homes from banning camera phones outright. Moreover, no federal statute addresses the issue.  However, state legislatures increasingly are addressing the use of technology in the workplace, including cell phone usage. Laws regulating technology can vary widely from state to state. It is advisable to review applicable state statutes, if any, before implementing a cell phone usage policy.

Assuming no state statute addresses the issue, employment law experts urge employers to “take a firm stance” and ban camera phones from the workplace completely. However, camera phones are often identical to regular cell phones, making it difficult to enforce a ban. Further, cameras are now a standard feature on many cell phones.

A more flexible approach might be just as effective. Nursing homes may ban camera phones from specific areas of the facility, or only allow employees to use their phones during breaks and/or in public areas.
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