Provided by: Jennifer Kirschenbaum, Esq.
October 8th, 2020
I am a big proponent of the new COVID tracking app by NY State. It does not track your movement, it only uses bluetooth to know if your phone comes near a phone of someone who tests positive.
I asked my staff to download on their phones and they are pushing back. Do I have the right to say you have to have it?
Can I enforce every two week testing of staff if I have the rapid tester in my office?
Thanks Dr. R, I've asked Kieran Bastible, Esq. of our Employment Department to take this one and he has provided the following -
Many employers are now deliberating whether to require employees to use technology—in particular, contact tracing apps—in an attempt to minimize transmission of COVID-19 at their workplaces. Generally such apps are downloaded to a Bluetooth/Wi-Fi enabled device and allows users to be aware of potential exposure to COVID-19, thus enabling them to seek medical attention or self-quarantine
Currently, there are no federal or state laws specifically prohibiting employer use of such apps, and the New York State Department of Health’s “Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency,” issued May 28, 2020 states, “As a best practice, [employers] may offer optional tracing and tracking technology (e.g., Bluetooth enabled mobile applications) to streamline contact tracing and communication process among their workforce and others.” (“NY Guidance”, found at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/offices-interim-guidance.pdf.). Similarly, the White House has heralded the importance of contact-tracing as a means to reopen the economy, suggesting in its “Opening Up American Again” webpage that employers “[d]evelop and implement policies and procedures for workforce contact-tracing following employee COVID+ test.”
Although the EEOC, OSHA, and the CDC have not specifically addressed use of contact tracing apps in the workplace, the EEOC has noted that COVID-19 constitutes a “direct threat” under the ADA, so employers may make more rigorous medical inquiries than would normally be allowed. under the “direct threat” framework the ADA may permit an employer to require that an employee: (i) install and/or use an appropriate contact tracing app or device and (ii) disclose when he or she has been notified of potential exposure.
However, in implementing an employee mandated program, employee rights must also be considered, including evaluating what information is being collected, how it is being collected, from whom, usage and processing parameters, information protections, and with whom information is being shared, if anyone. Advance notice to employees should be drafted and circulated, describing what is being done, why, and how. Existing employer privacy policies and notices should be reviewed to assure their provisions do not run afoul of contact-tracing. If the organization does not issue smartphones to all of its workforce, the legal implications (including wage and hour and tax) of requiring employees to download the app to personal devices should be evaluated.
Perhaps the biggest issue is how the employer would obtain access to the app’s collected information. Employers will need consent from their employees to receive from an app controller any medical information about their employees. However, many of the model apps are being built in a decentralized way (as a design feature to alleviate privacy concerns), such that centralized, identifying information will not be available to the employer or to other third parties. Such apps would alert the employee him/herself to that employee’s COVID-19 risk, and the employer would need to adopt a policy by which employees are required to report the fact that they have been in close contact with someone who is infected, as indicated by the app.
Meaningful employee buy-in is thus crucial for success, which would include employees’ downloading the app, carrying their smartphones with them when onsite, and promptly and accurately updating information on the app if they receive a positive diagnosis. Persuasively communicating that the program is limited in reach and designed for workplace safety (versus employee monitoring) will go a long way to accomplishing that goal.
Finally, it is recommended that New York employers take the temperature of their employees as part of the employer's mandatory health screening assessment. Such temperature taking is required for reopening businesses, who must adopt the NY Forward Safety Plan, which includes implementing a mandatory health screening assessment before employees begin work each day and for essential visitors. (https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/NYS_BusinessReopeningSafetyPlanTemplate.pdf).