The Telephone Consumer Protection Act (“TCPA”) generally prohibits the use of automated dialing equipment or prerecorded voice messages to make calls, send text messages, or send faxes absent prior consent of the called party. This includes calls or texts to cellular phone numbers as well as calls to residential lines. There are limited exceptions to the TCPA’s consent requirements, including calls or texts sent for “emergency purposes”, meaning calls or texts made necessary in any situation affecting the health and safety of consumers. On March 20, 2020 the Federal Communications Commission (“FCC”) published a Declaratory Ruling confirming that the COVID-19 pandemic is an “emergency” that qualifies for the TCPA’s “emergency purposes” exception.

FCC History Regarding the TCPA’s “Emergency Purposes” Exception

Since the TCPA’s enactment in 1991, federal courts and the FCC have interpreted the “emergency purposes” exception narrowly, and guidance has been limited. In 2016 the FCC issued a narrow Declaratory Ruling in Blackboard-Edison on the TCPA’s “emergency purposes” exception, highlighting permissible automated calls from schools during “threat situations” affecting the “health and safety of students and faculty”. The FCC also clarified in this ruling that utility companies “may make robocalls and send automated texts to their customers concerning matters closely related to the utility service, such as a service outage or warning about potential service interruptions due to severe weather conditions, because their customers provided consent to receive these calls and texts when they gave their phone numbers to the utility company”. Finally, the FCC noted that the ruling was “tailoring relief to narrow circumstances presented in these petitions…without diluting the TCPA’s core consumer protections”.

FCC’s March 2020 Declaratory Ruling on the COVID-19 Pandemic

Now in its March 2020 Declaratory Ruling, the FCC has again narrowly specified that during the COVID-19 pandemic certain calls and messages qualify for the “emergency purposes” exception under the TCPA. Such calls must meet the following requirements: 1) “the caller must be from a hospital, or be a health care provider, state or local health official, or other government official as well as a person under the express direction of such an organization and acting on its behalf”, and 2) “the content of the call must be solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.”

TCPA “Emergency Purposes” Exception and Workplace Correspondence

First, it is worth noting that while common sense would dictate that an employee’s provision of their telephone number to the employer should be viewed as consent to receive calls/texts (just as discussed above in Blackboard-Edison, where a utility company’s customers consented upon provision of their telephone numbers to the company), the TCPA and FCC guidance is silent on whether workplace correspondence are subject to TCPA liability. In at least one case where a claim has been brought against an employer related to the TCPA, the court dismissed the claim finding that the application’s language “authorizing [the employer] to collect, use….personal information provided for employment-related purposes” was consent.

Assuming, however, that an employer’s automated calls/texts to their employees are subject to the TCPA’s consent requirements, the question arises whether safety-related calls/texts made to an employee would qualify under the “emergency purposes” exception.   While this is unclear, given the two FCC Declaratory Rulings discussed above, there is a strong argument that such calls or texts would be considered as for “emergency purposes” and thus would be exempt from the TCPA’s consent requirement.   This is particularly true as Blackboard-Edison applied the emergency purposes exception not just to students, but also to faculty (employees).

Further in the March 20 Declaratory Ruling the FCC emphasized that “In the Blackboard-Edison Declaratory Ruling, the Commission made clear that automated calls to wireless numbers made necessary by incidents of imminent danger including ‘health risks’ affecting health and safety are made for an emergency purpose and do not require prior express consent to be lawful”. Interestingly, while the March 20 Declaratory Ruling is limited to calls made by hospitals, health care providers or health/government officials, this statement seems to indicate that the FCC intended Blackboard-Edison to apply more broadly.

Finally, the March 20 Declaratory Ruling also provided examples of inappropriate uses of the emergency purposes exception including calls that contain advertising or telemarketing of services like “advertising a commercial grocery delivery service, or selling or promoting health insurance, cleaning services, or home test kits” as well as “debt collection calls”. This sheds some light on when the use of the TCPA’s “emergency purposes” exception is appropriate or not generally, and it would seem that safety-related calls to employees, especially in light of the COVID-19 pandemic, would not fall into the category of inappropriate, based on these examples.

Takeaway

These are uncertain times, and of course, the safety and health of employees is critical. To avoid potential risks of a claim under the TCPA (including class actions), employers looking to implement programs to communicate quickly and timely with employees about health and safety risks, including those posed by COVID-19, should assess the applicability of the emergency purposes exception and/or consider obtaining additional consent.

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.