Q: Every morning, we conduct wellness checks on our employees as they arrive at work, but worry that some employees don’t monitor physical distancing when not at work. We’re barely hanging on as a business, but all it would take is one employee getting COVID and infecting our other employees to shut us down.
We have heard apps can provide real-time contact tracing and wonder, can we require our employees to wear them even when not at work?
A: Potentially. According to the Occupational Safety and Health Administration, employers must act to reduce and manage COVID-19-related hazards in the workplace. Employers can view video surveillance that shows when employees clock in and out and reveal an employee’s interactions while at work. Employers can provide employees lanyards or wrist bands that identify close contact with others and remind employees to remain a safe distance from other.
Some employers choose to go further as they struggle to remain open for business and protect employees and customers. A contact tracing app downloaded to a Bluetooth/Wi-Fi enabled device such as a company-issued smartphone makes users aware of potential exposure to COVID-19 so they can self-quarantine or seek medical diagnosis.
According to the National Law Review’s Nov. 14 issue, no specific federal or state-level laws currently prohibit employers from using contact tracing apps. Because COVID-19 constitutes a direct threat under the American with Disabilities Act, the federal Equal Employment Opportunity Commission allows employers to make more robust medical inquiries than prior to the pandemic.
Once an employee installs a contact tracing app on a Bluetooth/WiFi enabled device, the app transmits anonymous user identification to other app-installed devices within range. When a user reports a positive COVID-19 test, it alerts other app users who receive the identification number of the positive user if they have been in close contact. Some apps have features that enable employers to receive pre-shift COVID-19 symptom reporting.
In October, the CDC updated its guidance and now defines “close contact” as someone within 6 feet of an infected individual for 15 or more minutes over a 24-hour period beginning two days before the individual’s illness onset or two days prior to an asymptomatic individual’s test specimen collection. Since the CDC advises most employers to send home employees who have had a risk of exposure, this expanded guidance makes staffing more difficult for employers.
Employers considering using a contact tracing app need to thoroughly understand how the app works, how it protects user data and to consult with their attorney who can advise them about privacy and regulatory concerns. They need to vet the app vendor, understand who owns the data and identify app options that can be disabled. Before purchasing. they need to ensure the vendor encrypts the information and uses other safeguards to protect it. They need to make certain the vendor won’t sell or use the information in marketing.
Employers need to develop written policies and protocols for using and protecting collected information that comply with all regulations. This includes maintaining confidentiality, limiting collected data to only what it needs to identify infected employees, and to keep the data only as long as needed.
Employers electing to use an app need to inform employees how the app works; what information they collect; how the employer plans to use or share the information; how long it will keep data, and how the employees can raise their concerns. They need to provide employees clear, easily understood authorization forms and to gain their signed consent.
You have less privacy-invasive options. You can educate your employees so they understand easy it is to contract and transmit COVID-19; ask them to use reasonable precautions and self-quarantine if they come into close contact with an individual who has tested positive for COVID-19. Finally, you’ll want to stay on top of changing legislation concerning these apps.