FAQs — Contact-Tracing Investigations

FAQ

Should employers conduct contact tracing investigations in person or remotely?

In general contact tracing investigations should occur remotely. Once an employee has tested positive for COVID-19 he or she should be sent home immediately to quarantine. It is advisable to interview the infected employee remotely to avoid any possibility of exposure to interviewer or other employees. Once the infected employee has been interviewed and the interviewer has detailed information related to those employees with whom he or she had close contact, interviews of those employees should also occur remotely as employers should send home potentially exposed employees to quarantine. The goal of contact tracing is to stop the spread of the virus. This means, to the extent possible, anyone who has been exposed should be immediately sent home. If the employer is investigating where the COVID-19 employee may have contracted the illness it may be possible to interview non-exposed employees in person.

Where should employers store information related to contact tracing investigations?

Medical information received from the COVID-19 infected employee related to his or her illness can be stored in his medical file, away from his or her personnel file. Information collected from the contact tracing investigation should be stored in a separate investigations file. The investigations file should not be made part of any employees' personnel file or medical file. It is a confidential investigation and it should be handled int he same manner documents from any internal investigation are handled.

Can I require my employees to download a contact-tracing app as a condition of continued employment?

Probably. Private employers likely could require employees utilize a contact-tracing app, provided that the mandatory program does not violate an employees’ privacy rights i.e., is administered in a manner that is no more intrusive than necessary to meet the legitimate business needs of the business. The proper notifications must be in place prior to usage. The permissibility of a contact tracing app may depend on the industry and business. For example, a professional services firm, where the vast majority of employees can (or do) work remotely and therefore present no immediate danger to anyone else in the workplace, may have difficulty showing the app is a business necessity. On the other hand, a manufacturing facility that requires in-person presence and where the nature of the work prevents social distancing within the plant may be permissible as a business necessity. The app may not be effective if these employees do not keep their smartphones on their person during the work day and, instead, store them in a locker off the factory floor.

Further, employers must ensure that the app is used in a non-discriminatory manner and that any medical or other personal information the employer obtains is stored confidentially and separate from employee’s personnel files. Employers would have to cover the costs associated with the apps or the acquisition of smartphones to run the apps for employees who do not already own smartphones. Employers may also need to reimburse employees who use their own cell phones for this purpose. Employers should seek written consent from employees to obtain, use, and, when required, disclose to public health officials employee health information and geolocation data, as well as installation of the software for contact assessment and tracing.

As an employer, can I have access to the centralized information of the contact tracing app to be aware of the identity of employees with COVID-19 positive indication?

Employers will need consent from employees to receive from an app controller any medical information about their employees. Access will depend on app design, and many of the model apps are being built in a decentralized way, such that the centralized, identifying information will not be available to the employer or to other third-parties. Limiting any third-party access to this electronically-generated infection exposure information has become a design feature to eliminate privacy concerns.

The apps designed to limit employer access to information would alert the employee they may have been exposed, and the employer would need to a policy requiring employees to disclose the app has alerted them they have been in close contact with someone who is infected, as indicated by the app. In these cases, use of the app is only as effective as the employees’ compliance with the employer policy requiring disclosure of exposure.

As an employer, how may I enforce my requirement that employees install, monitor, and update a contact tracing app?

Employers may pre-install apps on employer-issued devices, and once the apps are installed, the devices may have an ability to monitor adherence to the employer’s policy. However, employers may face practical difficulties actually forcing their employees to install apps on their personal devices, and, must at least partially reimburse employees for the use of their personal device for the employers’ purposes.

Rather, as with most workplace policies, adaptions and adherence will likely depend on cooperation and employee “buy-in.” As a result, contact tracing and use of apps starts with effective communication to employees on the front end to educate them regarding the need and effectiveness of the measures including detailing what information will be collected, where it will be maintained and who will have access to the information.

As an employer, may I require an employee to self-quarantine or get tested based on an app rating of COVID-19 exposure?

Yes, but this assumes that (1) the app is configured to report the employee’s diagnosis to the employer, and (2) the diagnosis itself has been promptly and accurately reported to the app, either by the employee (as in most apps under development) or by a provider or laboratory (although this depends on the providers’/labs’ willingness to cooperate in a voluntary app reporting system). Note that employers may be required to permit an employee to work from home, provide sick time, including expanded sick leave payments pursuant to the Families First Coronavirus Relief Act, and/or cover the costs of COVID-19 testing for at-risk employees.