Returning Workers Divided on Contact Tracing

HR must address employee reactions, privacy and compliance concerns

Roy Maurer By Roy Maurer September 15, 2020
woman at work with mask

​A majority of U.S. workers feel that contact tracing would help prevent the spread of coronavirus as they return to their workplaces, but many aren't entirely comfortable about the process and have concerns about its use, according to research from the Society for Human Resource Management (SHRM).

Experts say contract tracing—a method used to help control the spread of infectious diseases by identifying, tracking and monitoring people who may have been in contact with someone who has been infected—will be key to safely returning workers to their workplaces and helping prevent the spread of coronavirus.

The method has been accepted by most U.S. workers. A recent survey of 1,007 employees by SHRM found that 68 percent of respondents agree that employers using contact tracing would help to limit the spread of COVID-19 in the workplace. However, a smaller majority said they would feel more comfortable at work if their employer were to use contact tracing (57 percent) and that the benefits of the practice outweigh potential privacy concerns (53 percent).

"COVID-19 has raised some novel considerations about how to balance personal privacy with public health," said Jena Valdetero, a partner in the Chicago office of Bryan Cave Leighton Paisner. "This is particularly an issue in the workplace, where both privacy and employment legal issues collide."

Jeff Levin-Scherz, M.D., North American co-leader of the health management practice at Willis Towers Watson, explained that employers must track workplace exposures, but they do not have to conduct contact tracing, which is a more extensive function managed by public health departments. Employers' methods for collecting information may vary from checking temperatures and having employees self-certify that they are not experiencing symptoms related to COVID-19 to using proximity-based apps and monitoring through ID badges, smartphones and work computers.

"Companies should interview the person with confirmed or suspected COVID-19, preferably by phone after they are out of the workplace, as the person with known or suspected COVID-19 should leave the workplace as soon as possible," Levin-Scherz said. "This interview should include information about exposure of fellow workers during the two days before the onset of symptoms. Employers should also plan to check schedules or any other sources of information about who might have been near the exposed individual. Those who have been exposed should self-quarantine for 14 days from the exposure."

New Area for Compliance Concern

The Americans with Disabilities Act (ADA) and U.S. Equal Employment Opportunity Commission (EEOC) guidelines around discrimination could be implicated by employers conducting contact tracing.

"Employment discrimination laws, including the ADA, would potentially apply where an employee is suspected of or diagnosed with COVID and/or where employees with other health conditions need accommodations because those conditions put them at heightened risk," Valdetero said. "Unfortunately, while the EEOC has put out guidance concerning the right of employers to require temperature checks and other preventative steps, it has not yet put out guidance concerning the right to require contact tracing in the workplace. While employers are expressly permitted to inquire into whether someone may have been exposed to COVID or are exhibiting COVID symptoms, the responses have to be treated as confidential medical records under the ADA."

She added that the prevailing view seems to be that employers can require contact tracing in the workplace, and can also identify employees who have tested positive to public health authorities, who may conduct their own contact tracing, but the employers cannot share the exposed individual's name with other employees.

Another compliance issue relates to enforcing contact tracing. "Some companies are asking employees to download a contact-tracing app on their smartphones or are issuing handheld devices that would identify whether the employee's device came within 6 feet of another employee's device," she said.

Privacy Concerns

Contact tracing in the workplace has led to privacy and legal concerns related to collecting and storing data.

"For small companies or offices, even if the employer doesn't disclose the name of the infected individual, it might be pretty easy to figure out who that person is based on who stopped showing up at work shortly before the other employees were notified they may have been exposed," Valdetero said. "Although retaliation and discrimination are expressly prohibited by the EEOC, people are human and COVID has put everyone on edge to some degree or another, so it's very possible the infected employee will be ostracized as a result. In addition, although medical records are required to be maintained confidentially, there's always the risk of a data breach—and if the employer requires contact-tracing apps to be utilized, there's no way to fully ensure that the app is secure."

She said organizations need to find the right balance between creating a safe workspace and using whatever tools are available to them and making sure they are complying with the laws and respecting their employees' privacy. Actions to consider include limiting the number of people who have access to the information, being transparent about how the information will be used, and thoroughly vetting third-party apps.

"When considering utilizing a contact tracing app, the employer should make sure it relies on Bluetooth or similar technology to recognize other devices, as opposed to GPS, which can lead to invasive tracking of an employees' movements," she said.

HR Best Practices

HR should be prepared to address employees' negative reactions to tracing, as well as panic from communicating an exposure.

"Clear, consistent and fact-based communication is important," said Steve Wojcik, vice president of public policy at the Business Group on Health, a Washington, D.C.-based advocacy organization for large employers. "Employers should reassure employees that they have their well-being and safety in mind, and are communicating in an abundance of caution and to prevent further spread of the virus to others. Employers should also remind employees about the resources available to them, both in terms of testing and treatment as well as EAP and other services to assist employees."

Employers must earn the trust of their employees, Levin-Scherz said. "Employees want employers to respect their privacy, and they want employers to avoid exposing them to undue risk. Employers who carefully explain why they cannot identify who has become ill can help gain trust of other employees that their privacy, too, will be respected."



Hire the best HR talent or advance your own career.

Member Benefit: Ask-An-Advisor Service

SHRM's HR Knowledge Advisors offer guidance and resources to assist members with their HR inquiries.

SHRM's HR Knowledge Advisors offer guidance and resources to assist members with their HR inquiries.



HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.