Virus-Mitigation Technology: A Breakthrough in Efforts to Slow the Virus or An Overreach by Employers?

At the onset of the coronavirus outbreak in the United States, stay-at-home orders across the country forced businesses to close and many employees began working remotely from home. As businesses now begin to find their “new normal” in the midst of the COVID-19 pandemic, a big concern for employers is finding the best way to keep their employees safe and healthy. There are tons of resources online on how to safely resume in-person business during this time from the CDC, Department of Labor, and many others. Many businesses are conducting temperature checks, monitoring if their employees have experienced symptoms, and inquiring if they have been in contact with anyone who has tested positive for COVID-19.

Some employers are looking to new technology such as phone apps and wearables to slow the spread of the virus and better ensure employees’ safety. Ogletree Deakins’s Jennifer Betts identified the main categories of virus-mitigation technology: symptom tracking, contact tracing, social distancing enforcement, and thermal imaging. This technology will be much easier for employees to implement and maintain than the traditional, manual methods.

These new virus-mitigation technologies will likely be effective in slowing down infection rates in the workplace, but do the benefits outweigh the legal implications?

Symptom tracking through an app or other technology would consist of employee health screenings and self-reporting symptoms. Employees would fill out a questionnaire about their symptoms and temperature before coming to work, and they will receive feedback on whether they are good to go to work, or if they should stay home. Contact tracing is traditionally done through interviews with people who have tested positive to see who they have been in contact with. But some employers, such as Emerson Electric, are also starting to use digital contact tracing through Bluetooth technology or GPS. If two employees come within 6 feet of each other, the technology will log the encounter. Once an employee becomes sick, the technology (and employer) can notify anyone who was in contact with that employee and may be infected. Similarly, employers can have their employees use wearable devices that will alert them if they get too close to another employee to ensure proper social distancing measures. These new virus-mitigation technologies will likely be effective in slowing down infection rates in the workplace, but do the benefits outweigh the legal implications?

These new virus-mitigation technologies implicate a host of legal concerns in areas such as data privacy, cybersecurity, health law, and employment law. Ogletree’s Betts notes that employers have a lot to consider before implementing these technologies, including “how employees are going to react to them, how intrusive they are and to make sure [they] have a communication plan and strategy before [they] implement the tools to try and counteract any of those issues.”

One question that Kate Heinzelman of Sidley Austin identifies to be “front and center” for employers is whether they will make these technologies required or voluntary for employees. Heinzleman notes that “[e]mployers can require employees to take many steps as a mandatory matter for the health and safety of the workplace, particularly in this extraordinary time. But a particular app or type of information collection may present risks that are better addressed by deploying the app on a voluntary basis.” It is also a tricky question for employers because the technology will be most effective if all employees participate.

In terms of privacy law, employers should also be careful with what third parties are doing with the data they are collecting. Employers should be certain employees are not being tracked off-duty and that the third parties are not collecting other data outside the scope of what is necessary to slow the spread of the virus. The data may be sensitive health and location information that the employees do not want to be shared. Jason Gavejian of Jackson Lewis PC says that companies should, “either contractually or through due diligence,” ensure that the data being collected is “actually accurate and that additional data is not being captured.” Another consideration that Jackson Lewis’s Joseph Lazzarotti identifies is whether they want to provide their employees with a phone or have employees use their personal phones. He suggests that employers conduct “a multi-factored analysis” to decide on this issue, noting that using employees’ personal phones would save money, “there can be greater privacy issues and considerations that you have to work through as well.”

Employers are also likely to run in to privacy issues if they are operating in multiple different jurisdictions, subjecting themselves to different privacy laws. This may make it challenging (or impossible) to implement a standard virus-mitigation plan. Jason Gavejian of Jackson Lewis PC said “[he is] seeing clients roll [these plans] out nationwide” and they are “look[ing] to utilize one piece of technology across the board.” Employers need to make sure they are checking the privacy laws of all the jurisdictions they operate in before implementing a new virus-mitigation plan. For example, California has a general prohibition on using an electronic device to track someone’s location, but other jurisdictions do not.

Employers also need to be wary of how digital contact tracing implicates employment laws. The Americans with Disabilities Act prohibits employers from asking their employees for health information and from excluding individuals from the work place because of their disability unless they pose a “direct threat.” The U.S. Equal Employment Opportunity Commission has said that COVID-19 qualifies as a “direct threat” under the ADA, so employers can now make “more robust inquiries” than usual. They may collect this data as long as it is being “used to help track and mitigate the spread of COVID-19 in the workplace.” If the data is used for any other reason, such as monitoring productivity in the workplace for example, the employer may be in violation of the ADA. Employers should also be aware of ADA requirements for how employers store the health information and confidentiality requirements limiting how much can be shared with other employees when one is positive for COVID-19.

The Occupational Safety and Health Administration says that “employers have the responsibility to provide a safe and healthful workplace that is free from serious recognized hazards” during the COVID-19 pandemic. They also have standards regulating the retention of medical records (for the length employment plus 30 years). It is important to consider whether information collected from digital contact tracing will be subject to these standards or if other laws may mandate that this information is deleted sooner.

Jackson Lewis’s Lazzarotti noted another labor law issue to consider when implementing virus-mitigation technology. If employees are part of a union, implementation of such technology is subject to collective bargaining between the employer and the union. He says, “[b]arring [a collective bargaining agreement giving the employer discretion about how they maintain safety in the workplace], if you’re going to be implementing technology that affects working conditions, which I think this might, I think there’s a good chance that you have an obligation to bargain.” Even further, if the union agrees to the technology and employees’ data ends up being used outside of the scope of what was agreed upon, the employer may face an unfair labor practice charge.

These are just some of the many legal questions that arise from employers’ implementation of virus-mitigation technology in the workplace. As employees return to work, employers have a lot of tough considerations to make on how to best combat the virus. With the interest in keeping employees safe and healthy at the forefront, employers will have to weigh all of these concerns (and more) against the threat of the virus in deciding what is best for their businesses and employees.

September 22, 2020 | Margaret Daly