By Brian Skinner, Esq.
We are all now acutely aware that COVID-19 is a highly contagious and potentially fatal virus that disproportionately impacts persons, and particularly older adults, with preexisting conditions and weakened immune systems. As businesses begin to reopen, both employers and their employees have concerns about the potential risks involved in returning to the workplace. Employees are understandably anxious and fearful about returning to their offices or shops, contracting the virus and then taking it home with them. Employers have their own set of anxieties as they attempt to navigate the complexities of prioritizing employee and customer safety while also observing their employees’ right to privacy.
Many employees believe their employers have an obligation to let them know when a colleague contracts COVID-19. A recent survey from Kronos Incorporated conducted by The Harris Poll of 1,226 U.S. employees found 86% agreed that employers are obligated to inform employees if they’ve been exposed to a coworker who tested positive for COVID-19. The poll also found that 78% agreed that if COVID-19 cases were rising in their region, they would not want to risk going into the workplace.
The Workplace Intelligence survey by Savanta, Inc., based on the responses of 3,903 domestic and international employees, found that, globally, about 89% of respondents are comfortable to varying degrees with employers using access control and/or workplace movement records for the purpose of contact tracing, About half (51%) of respondents born from 1994 to 2002 are “a great deal” or “very comfortable” with this method, according to the data.
These surveys indicate that employees are depending on employers to let them know if they’ve been exposed to COVID-19 in the workplace and moreover, suggest that employees’ safety concerns outweigh privacy concerns. But employees are also seeking transparency from their employer when it comes to the methods used to help prevent the spread COVID-19.
Fortunately, balancing employee health concerns and privacy rights is not a mutually exclusive exercise in the context of COVID-19, and the U.S. Equal Employment Opportunity Commission (EEOC) has published materials to help employees navigate these uncertain times.
Some employers are turning to digital tracking or contact tracing technology to help identify employees who may have contracted the virus and to reduce virus transmission in the workplace.
Guidance from the Centers for Disease Control and Prevention (CDC) has called contact tracing “a key strategy for preventing further spread of COVID-19.” Contact tracing is “a core disease control measure employed by local and state health department personnel for decades,” the CDC said.
Several contact tracing apps have become available to employers since the pandemic’s outbreak. Most of these apps use the Bluetooth technology found in cell phones to detect when an employee comes within six feet of one of their coworkers.
The benefit of these apps is that they allow employers to identify members of their workforce who may have been exposed to the virus without the need for publicizing information that allows coworkers to speculate about which of their colleagues may have been infected with the virus. Additionally, these apps ensure that employers can quickly identify potentially exposed individuals and take appropriate precautions to prevent disruptions in their workforce.
However, privacy experts worry that businesses will start using their newfound surveillance capabilities for purposes far beyond public health. The data could be used to evaluate workers’ productivity. For example, the app could be used to track meeting attendance or identify an employee leaves the office during work hours. Additionally, employers that elect to implement apps or other electronic aids to track employee movement, should ensure that these apps can be turned off during non-working hours.
So, while contact tracing apps may provide a flexible and efficient method to augment employers’ current workplace safety protocols, anytime new technologies are implemented there are risks and limitations. And while the technology itself is the best reason for its implementation, it also supplies the biggest limitation — the reliability and accuracy of the technology is only as good as its user.
For the technology to be useful employees must have their phone on them at all times. Employees may choose or be required to leave phones in their lockers or private workspaces before going to the factory floor, production yard, or conference room. They may turn their phones off during meetings. Or, they may simply forget to charge their phones or unintentionally leave them behind on their desks.
Then there is the risk of creating a dangerous false sense of security that results in employees failing to adhere to safety protocols or conversely, the false alarm and unnecessary business disruption they could create, if someone is notified of exposure when they have not in fact been exposed.
And, while verification of reliability and accuracy are important risks to be considered, perhaps the biggest risk is privacy.
The EEOC has cautioned that, while employers may ask employees about whether they are experiencing COVID-19 symptoms and take employee temperatures upon entering the workplace, they must maintain the confidentiality of any information collected regarding employee illnesses and keep any related records for certain periods of time. In the employment context, this means keeping the medical records and information from other personnel records and information and limiting access to the same.
In addition to federal EEOC guidance, some states have applicable privacy laws as well. For example, West Virginia recognizes as common-law invasion of privacy the public disclosure of private facts (e.g., unreasonable publicity given to one’s private life).
An employer who decides to implement a contact tracing app in the workplace should do at least the following:
- Research which app is most appropriate for the particular workplace; understand how it works, including how it protects user data; and the background and credentials of the app developer.
- Deploy traditional methods to verify the underlying facts pertaining to the employee’s workplace contacts and act accordingly.
- Develop written policies in compliance with applicable laws, informing employees, among other things, how the app works; how it is to be used; what information it collects and provides; and what reimbursement, if any, will be provided.
- Provide training to employees on using the app.
- Obtain signed consents and acknowledgments about use of the app and of the information collected in compliance with any applicable laws.
- Develop and implement appropriate policies and protocols for using and protecting employee information collected through the app.
- Monitor local, state, and federal government agencies and bodies for new guidance and laws pertaining to employee privacy and use of the apps.
So, while contact tracing apps may be helpful in quickly identifying potentially exposed individuals so that appropriate precautions can be taken to prevent disruptions of their workforce, employers need to be cognizant of the legal considerations and implications before deploying them.
Brian is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.
This article contains general legal information and does not contain legal advice. H2C Public Policy Strategists, LLC is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.