Navigating Symptom Checker Applications, Privacy Concerns, and Workplace Discrimination; Considerations for Best Practices

Bender’s Labor & Employment Bulletin October 2020

RyAnn McKay Hooper, Karen Mandelbaum, and Steven M. Swirsky, attorneys in the Employment, Labor & Workforce Management and Health Care & Life Sciences practices, co-authored an article in Bender’s Labor & Employment Bulletin, titled “Navigating Symptom Checker Applications, Privacy Concerns, and Workplace Discrimination; Considerations for Best Practices.”

Following is an excerpt:

As many employers in the United States face the ever-looming question of when and how to return employees back to the physical workplace, and states and localities continue to develop and refine guidelines to offer guidance on “safe” return to in-person work, the development of digital tools to help manage the spread of COVID-19 have grown exponentially. In some places, employers are required by state law to screen the health of employees prior to reopening their business, and regularly thereafter to keep the business doors open. Mobile applications that track symptoms, or technology platforms that use detailed algorithms to allow users to input symptoms and receive diagnostic information, are becoming widely accepted as a tool business may use to reopen the workplace with reduced risk of COVID-19 transmission from employee-to-employee.

Digital tools which track and check health symptoms, provide employees with access to telehealth services, and provide employers with access to contact tracing capabilities are valuable tools in maintaining a virus-free or virus-light workplace. While there is no single body of law that protects employee personal data or that precludes an employer from requiring that employees returning to in person work utilize such applications, the use (or misuse) of the data collected by employers through these technologies and applications may leave an employer vulnerable to liability for issues related to consumer protection and data privacy, potential wage and hour issues, general discrimination, and general liability for third-party misuse of information collected. This article will explore the considerations and risks for employers evaluating the use of digital technologies and applications pursuant to local mandates requiring health screening for return-to-work.