Considerations for Employers Using Virus Prevention Tech


Adam S. Forman, Nathaniel M. Glasser, Karen Mandelbaum, and Robert J. O’Hara, Members of the Firm, co-authored an article in Law360, titled “Considerations for Employers Using Virus Prevention Tech.” Epstein Becker Green Associates Matthew Savage Aibel and Elizabeth Scarola also contributed to the article. (Read the full version – subscription required.)

This article was a collaborative effort between the firm’s Employment, Labor & Workforce Management and Health Care & Life Sciences practices. 

Following is an excerpt:

As the country emerges from the closure orders that once blanketed the nation, businesses are evaluating reopening in a manner consistent with the health and safety of their workforce and customers. In this tech-savvy world, mobile applications, wearables and other innovations have the potential to play a prominent role. Using these technologies effectively and in a legally compliant manner will be important in avoiding both the spread of COVID-19 and lawsuits while balancing individuals' privacy interests.

Public health authorities have emphasized the importance of social distancing and contact tracing as necessary tools to avoid a second wave of COVID-19 infection. Mobile tracking technology promises to assist in these twin efforts. Use of mobile apps, in combination with other important infection control measures, may enhance COVID-19 prevention and remediation but also comes with risks worth evaluating.

Tracing and Distancing Through Tracking Technologies

Tracking technologies have the ability to assist in enforcement of social distancing and to perform contact tracing. Various vendors offer off-the-shelf solutions, while some companies choose to invest in creating customized mobile applications. Tracking technologies work either actively or passively by pinpointing an individual's location using radio frequency sensors or GPS locations using a tag or an app on a mobile phone.

Passive tracking technologies store this information for downloading later. Active tracking apps, on the other hand, may have the capability of enforcing social distancing by immediately alerting employees if they are in too close physical proximity. Active and passive tracking apps may allow for contact tracing by pairing data identifying who the user has contacted with knowledge of who has symptoms or has tested positive for COVID-19. In such cases, the employer notifies the employees who came into contact with an infected person and ask them to quarantine, report whether they experience symptoms or test positive, and/or be tested.

Employers using mobile tracking apps may build a data set from which to make better-informed decisions based on empirical evidence of employees' movements and contact with others. Adoption of mobile tracking technologies may also assist in defending administrative charges or civil lawsuits by providing evidence of an infected individual's interactions in the workplace, or by demonstrating the employer's good faith efforts to safeguard the workplace. Employees may also appreciate the technical assist in maintaining social distancing and/or contact tracing.