Many employers are playing it loose with privacy and employment laws to meet legal requirements for keeping track of employees and their interactions. This is called contact tracing and it is essential in the war against COVID-19. Technology now exists to aid in this impossible task, in the form of contact-tracing apps.
Employees who test positive for COVID can use a mobile application to alert others they have in contact with. Those individuals can then self-isolate and take the appropriate measures. The app takes some of the burden off employers in their efforts to contain the virus in the workplace.
Contact-tracing apps work in several ways. In addition to installing the app on their mobile devices, employees can wear a chip, wristband or badge that serve the same purpose. Anonymity is maintained, as information is transmitted to other mobile devices. When these devices are in proximity, a low energy Bluetooth or Wi-Fi signal creates a connection with others they have been in close contact with. If an employee tests positive, anyone with that connection is notified.
The apps collect other data in other ways. For example, some use geolocation to display where employees have been and who they may have come in contact with. This method can explain how a specific geographic location may be affected by the coronavirus. It also can be configured so that it only begins tracking when users are at a particular site like the workplace.
Other information, such as environmental factors or self-assessments, are also gathered by the apps. A great deal of personal information is collected, which raises questions about employee privacy rights. In these desperate times, answering these questions can be a tricky task.
Imagine a seesaw. Business needs are one end, while employee privacy rights sit on the other. Right now, business needs have never been higher. They are at emergency levels. As a result, privacy rights have never been lower. According to government agencies, safety preempts privacy. This allows for medical tests, such as temperature checks and COVID testing, as well as employee surveillance in the form of tracking location and movement.
One key factor in making an argument for violation of privacy could be determining whether an employee is on the clock or not. Apps may not know the difference, but employers should. While it is a legitimate concern for employers to track employees in the workplace, is it necessary to do so when they are elsewhere? All relevant information should still be accessible while workers are on-duty.
No matter what, employee confidentiality is still a priority. Personal data, especially medical information, must still be protected. Access to test results should be made available to certain administrators, on a need to know basis. There is no reason why those employees cannot be notified, either.
Employers must maintain confidentiality while, at the same time, doing all that is necessary to keep their employees safe. This may be uncharted territory, but privacy should still be respected. The task of charting that territory falls to employers and experts in employment law.
The Law Office of H. Benjamin Sharlin LLC
is owned and operated by H. Benjamin Sharlin and serves all of Mercer County, New Jersey and the surrounding areas. Mr. Sharlin is a bilingual Spanish-speaking attorney who vigorously represents the interests of all his clients.
Call (609) 585-0606 or click the button below to schedule an appointment