Employers throughout the United States have had to adapt very quickly to the ongoing COVID-19 pandemic. While some employers have allowed their employees to work from home, many employers need to have their employees on-site.
A variety of safety measures can prevent, or at least slow, the spread of COVID-19 in the workplace. These measures include wearing masks, sanitizing surfaces, and maintaining distance between workers, especially in enclosed workspaces.
Contact tracing is another important weapon in the fight against the coronavirus, and employers have a major role to play. Employers should be cautious, however, that their efforts do not violate privacy rights or create even more problems among workers.
The Centers for Disease Control and Prevention (CDC) describes contact tracing as "an effective disease control strategy" that seeks to "interrupt disease transmission." Contact tracers identify individuals who have been infected and ask them to list everyone they've had close contact with since they became infectious.
For COVID-19, the CDC defines a "close contact" using the "6-15-48 rule." That means a close contact is anyone who came within six feet of the infected individual for 15 minutes or longer, starting 48 hours before the person first showed symptoms until they were isolated. This could include the individual's family members, friends, and coworkers. If the individual went to a restaurant or bar, it could also include many of the other patrons.
Contact tracers locate the people and businesses identified by the infected individual. Without disclosing the infected person's identity, the contact tracers provide these individuals with information about the disease, their risk, and further steps they can take. The infected individual and their contacts are advised to quarantine themselves for at least 14 days from the date of contact.
Contact tracing is primarily the responsibility of public health agencies at the local, state, and federal level. Employers can support government tracing efforts by keeping records of employee attendance and customer presence at the worksite in the event that public health officials contact them. Employers can also engage in their own contact tracing efforts in order to proactively address potential outbreaks among their employees.
Employers who are assisting public health officials with contact tracing—or performing contact tracing of their own—should keep in mind these best practices.
Employers should designate an employee or group of employees who will be responsible for contact tracing. This entity acts as a point of contact for public health officials, and establishes responsibility for staying up to date on the latest COVID-19 developments. The contact tracing team can also create lines of communication with the employer's human resources department, legal counsel, and other important departments or officers.
Maintaining records of who worked which shifts, and in which locations, can provide a wealth of information about potential contacts. Employers with office environments should keep track of where each employee sits within the workspace. Employers that operate other worksites, such as warehouses or factories, should keep track of where each employee is usually stationed.
Potential transmission of COVID-19 is not limited to employees, of course. For that reason, employers should generally require visitors to the worksite to provide their names and contact information to aid contact tracers in the event of an outbreak. While this might not be practical for stores that see dozens of customers passing through each day, many bars and restaurants are requiring patrons to provide this information.
An employer's contact tracing team should speak with infected employees as soon as possible after they receive a positive test result. Attendance records and records of shift assignments can help employees remember people with whom they might have had close contact. The contact tracers should advise the employee to self-quarantine, following the latest information from public health officials. As discussed further below, they should keep the employee's mental health and well-being in mind during this process.
The contact tracers should notify everyone identified by the employee about the possible exposure, taking care to protect the infected employee's privacy. They should provide the employees with information about the virus and how to self-quarantine. If the infected employee identified people who are not employees, the contact tracing team should consult with their local public health agency for guidance.
The world has not seen a pandemic on the scale of COVID-19 in a century. When it officially became a pandemic in March 2020, few, if any, employers were equipped to deal with the issues it presented. Efforts at contact tracing can help employers protect their employees and their businesses, but they also present certain risks. Employers should be cautious in their approach.
Employers should keep track of the latest health and safety recommendations from government and industry bodies. OSHA's Guidance on Preparing Workplaces for COVID-19 and the CDC's COVID-19 page for employers are two valuable resources for keeping the workplace safe.
Contact tracing by employers has the potential to bring them into conflict with laws involving privacy and employee rights.
Most employers are not covered by the restrictions on disclosure of medical information found in the Health Insurance Portability and Accountability Act (HIPAA). Employers should still make reasonable efforts to safeguard information obtained from employees as a result of contact tracing. Unauthorized disclosure of personal information could violate state laws. Check with an employment lawyer in your state if you have questions about the laws in your jurisdiction.
The Americans with Disabilities Act (ADA) prohibits employers from requiring employees to submit to medical examinations unless there is a clear need for the exam that is related to an employee's job. Notably, the Equal Employment Opportunity Commission (EEOC) has stated that employers may require temperature checks for all employees because fever is a common symptom of COVID-19, although it cautions that many cases are asymptomatic.
Employers are obligated under the Fair Labor Standards Act (FLSA) to compensate employees for all time spent on the job. This includes time spent undergoing screening for COVID-19 and participating in contact tracing efforts.
For more information, the EEOC has published guidelines for employers regarding various aspects of the COVID-19 pandemic.
An employer doing their own contact tracing should always consider the effect of their efforts on workplace morale and the mental health of individual employees. People might be frightened or react with anger toward the person who infected them. Responding with empathy is critically important, as is protecting the confidentiality of everyone involved.