Contact-Tracing Apps Present Privacy Concerns and Are a Mandatory Subject of Bargaining

Contact-tracing is a disease control measure that has been employed by health departments for decades, and a key strategy for preventing the further spread of COVID-19. Contact-tracing involves reaching out to inform individuals who have been exposed to the virus and should therefore follow certain safety protocols. With technology now supporting and augmenting traditional methods of contact-tracing, employers are considering the use of contact-tracing smartphone apps to avoid the spread of COVID-19 in the workplace.

Smartphones with Bluetooth, GPS, and WiFi capabilities can download contact-tracing apps. Although many apps are still in the development phase, the apps generally fall into two categories—digital exposure notification (DEN) and digital contact-tracing (DCT). DCT apps are designed primarily for public health officials, while DEN apps are designed for employers and may have a range of features such as pre-shift COVID-19 symptom reporting.  DEN apps use an Exposure Notifications System (ENS). With this feature, once a user reports a positive COVID-19 test, an alert is sent to other users within range to inform them of the potential exposure.  After an alert, the app may provide further instructions from a public health authority on how to keep the user and surrounding persons safe.

Employers are obligated under the Occupational Safety and Hazard Administration (OSHA) General Duty Clause to provide workers with a work environment free of recognized hazards that are causing or likely to cause death or serious physical harm. COVID-19 is a recognized hazard by OSHA, which has led some employers to require employees to use contact-tracing apps.

Although contact-tracing apps may be a useful way to supplement workplace safety protocols, they have risks and limitations. Although currently no federal or state laws prohibit the use of contact-tracing apps in the workplace, state laws may impact how such apps may be used.   For example, California employers are required to reimburse employees for work related cell phone use, and the California Privacy Act requires businesses, including employers, to inform consumers, including employees, about the personal information they are collecting, and obtain employees’ affirmative consent to do so.

Privacy is probably the most important concern for employees required to use contact-tracing apps. The EEOC has stated that any personal information collected from employees with respect to COVID-19 must remain confidential and separate from other personnel records, and access to such records should be limited. In addition, pursuant to the California Privacy Act, employees have a right to obtain the information being collected, to deletion (upon request) of the information collected, and to be free from discrimination for exercising these rights. There are also three proposed federal bills dealing with privacy protection of COVID-19 related data collected by employers.

Other considerations include the possibility of the data being used as evidence in investigations, for example if an employer fails to record or report an injury, illness, or death pursuant to OSHA. In addition, the data could be used in workers compensation or personal injury lawsuits to determine whether the exposure to COVID-19 occurred at work.

Finally, but importantly, employee surveillance activities are a mandatory subject of bargaining. Unions can negotiate, among other things, what data is collected; how long data is stored; what security measures are in place to ensure data is kept confidential; whether use of the app is voluntary or mandatory; whether the app will track employees outside work time; who within the employer’s organization will have access to information collected; and whether any information collected via the app could form a basis for discipline. Employees can act collectively to address the limits on any contact-tracing app they may be instructed to install.

For further information about contact-tracing and its implications on the workplace, contact your labor law counsel.

By: Bisma Shahbaz | September 18, 2020

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