Employee Health Screening Apps Are Coming – Proceed With Caution

Monday, May 25, 2020
By Paul Martin

by Craig Gottwals, Esq., via Benefit Revolution
Mon, 05/25/2020

COVID-19 and the resultant business and economic freeze may very well prove to be the largest global event occurring in any of our lifetimes. The loss of lives, livelihoods, businesses and long term effects on mental health and culture are far from complete, yet already devastating. Now, employers grapple with the most significant decision they are likely to ever make: when to come back to work and how.

Many employers will be lured into the siren song of safety above all else and succumb to a balancing act that tips heavily in favor of control and surveillance over individual liberty. I fully understand the impetus. Employers find themselves in a tricky Catch-22. They must do that which is reasonable to protect the health and safety of their workers without trampling on employee privacy, health or liberty.

As the attorneys at Ropes & Gray LLP point out, “[e]mployers looking to introduce these apps may point to their duty under the Occupational Safety and Health Act (“OSHA”) to furnish to workers ’employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.'” But as Americans, we have far more individual liberty protection than people in the Asian countries that are months ahead of us and have already implemented sever state, local and employer controls. For example, “China has already introduced virtual health checks, contact tracing and digital QR codes to limit the movement of people. Antibody test results could easily be integrated into this system.”

Beyond any employer’s legal analysis (which is undoubtedly important) the cultural differences in the United States should oblige employers to proceed with more than a modicum of caution. We have a vast network of federal, state, local and employment laws and regulations protecting our individual liberties. What’s more is that inherent and deep love for liberty embedded in our Constitution and our core as a people. American was founded on the concept that liberty outweighs security. As Benjamin Franklin wrote famously in the Pennsylvania Assembly’s 1755 reply to the Governor,

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

Ropes & Gray nicely summarized these points as such:

Because of contact-tracing apps’ intrusive nature and the laws discussed above, employer-required or employer-implemented electronic contact tracing could be viewed as overreaching. These concerns would be heightened for an employer seeking to implement a blanket requirement that all employees must install and use the app, or seeking to gather and use COVID-19 data of employees when they are off duty. As such, any employer-implemented program should be carefully designed, reviewed, and vetted. In general, consent-based approaches will be easier to implement, particularly if the consent, even if opt-out, is prominent and comprehensive notice of how the information will be used is provided. …

Finally, public fear of government and corporate mass surveillance is well established. As such, employers may encounter considerable resistance if they require (or even strongly encourage) installation of these apps on employees’ personal smart phones, which have large amounts of personal data and are already subject to heightened legal protections.

Behemoth corporations are now lining up to create such apps. Google, Apple, Microsoft and UnitedHealth are all working on projects to gather up as much as possible about your employees’ health and report some of that data back to you. And while none of these companies have discussed going quite this far, Natalie Kofler & Françoise Baylis writing at Nature asked us to:

Imagine a world where your ability to get a job, housing or a loan depends on passing a blood test. You are confined to your home and locked out of society if you lack certain antibodies.

It has happened before. For most of the nineteenth century, immunity to yellow fever divided people in New Orleans, Louisiana, between the ‘acclimated’ who had survived yellow fever and the ‘unacclimated’, who had not had the disease1. Lack of immunity dictated whom people could marry, where they could work, and, for those forced into slavery, how much they were worth. Presumed immunity concentrated political and economic power in the hands of the wealthy elite, and was weaponized to justify white supremacy.

Something similar could be our dystopian future if governments introduce ‘immunity passports’ in efforts to reverse the economic catastrophe of the COVID-19 pandemic. The idea is that such certificates would be issued to those who have recovered and tested positive for antibodies to SARS-CoV-2 — the coronavirus that causes the disease. Authorities would lift restrictions on those who are presumed to have immunity, allowing them to return to work, to socialize and to travel. This idea has so many flaws that it is hard to know where to begin.

The Rest…HERE

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