Many states are beginning to re-open and employees are beginning to return to work. But COVID-19 is still alive and well, leaving employers with a big question: To what extent can they monitor the health of their employees?
The short answer: It depends on whether you are seeking to monitor the employee while they are off-duty or on-duty.
Monitoring Employees Off-Duty
This method is not practical and can open up a legal can of worms. Here’s why not to pursue this avenue.
It is difficult to monitor what employees are doing when they are not at work. You may try to look to your employees’ social media to see whether they are practicing social distancing, but this can lead to actions founded in discrimination and speculation. First, not all employees have social media accounts, making the off-duty monitoring practice inconsistent and potentially unfair. Second, even if you learn that an employee visited a popular beach over the weekend, it could be difficult to make a definitive judgment on whether they were practicing cautious behavior. Making a judgment often requires speculation and would lead to unevenly enforced policies.
But social media is not the only way that employers can monitor their employees. You may have heard that tech companies have been developing contact-tracing applications that use smart phone technology to conduct electronic contact assessment and notification. While no such app is publicly available on the market, they are currently being developed and tested. Nonetheless, here are some things to consider for when such apps become available:
- Business Necessity
Determine whether it is critical for you to monitor the health of your employees. If you are a professional services firm, where a vast majority of employees work remotely, the app is probably not a necessity. If you are a medical services provider for the elderly, you could potentially make an argument that the app is a necessity.
- Non-Discriminatory Practice
If you find that the app is critical for your business operations, the next step is to ensure that it is used in a non-discriminatory manner. You would likely have to cover the costs associated with the app, or perhaps even acquire smart phone devices for those employees who do not already own smartphones. You also have to make sure that the data you obtain from the app – medical or other personal information – is stored confidentially and is not used for any purposes other than the intended use of the app.
- Legal Considerations
Because contact-tracing apps can touch on intimate aspects of people’s lives – where they go, what they do, who they meet – you must consider a multitude of laws related to this technology. Such areas of law include: anti-discrimination laws, employment laws, contract rights, health care laws, and privacy laws. Also note that different states may have different rules with regards to these areas.
Monitoring employees’ social media or requiring them to download and use such a contact-tracing app will be time-consuming and add an across-the-board increase in the cost of doing business at a time when most companies can least afford it. The cost of defending the business against potential lawsuits alone is reason enough to tread cautiously. It can also damage company morale and lead to bad publicity.
To protect employees at the workplace, your best bet is to consider measures you can take to monitor employees’ health while they are on-duty.
Monitoring Employees On-Duty
In terms of monitoring the health of your employees while they are on-duty, there are practices you can take to ensure that you maintain a safe workplace.
- Daily Health Checks
Depending on whether knowledge about employees’ health is a business necessity, you may be able to have employees fill out daily health surveys. These surveys include questions such as: Have you been in close contact with someone who has a confirmed or presumptive case of COVID-19? Have you been experiencing symptoms of COVID-19? If they answer “yes” to any of the questions, you should require them to self-isolate away from the workplace.
In addition, you can also conduct COVID-19 testing or body temperature checks on employees, again, provided that such examinations are job-related and consistently applied.
- Social Distancing, Handwashing, and Masks
At work, you have the right to require employees to conform to social distancing and routine handwashing practices. But if you implement policies to require the use of wearing personal protective equipment, be prepared to provide it yourself or offer reimbursement.
All in all, whether you decide to monitor employees’ health or not, ensure that you weigh the necessity of the monitoring with the available resources. If you are interested in additional resources on preparing the workplace for COVID-19, see OSHA’s guidance.