With large portions of the country reopening in the midst of the COVID-19 pandemic, it's essential that employers do their part to help stop the spread of the virus. One of the ways they can do this is through contact tracing.
Contact tracing means determining who an infected person had contact with in the hopes of limiting the spread of the virus. While contact tracing has become a hot topic lately, the truth is it's nothing new. Public health officials have used it for decades to curtail a host of deadly contagions, including tuberculosis, ebola, and SARS.
But contact tracing has never been attempted by American employers on such a large scale. If you're implementing a contact tracing policy, there are some basic guidelines and principles you should follow to make sure things go as smoothly as possible.
The Centers for Disease Control and Prevention (CDC) recommends that most workplaces follow the 6-15-48 rule when it comes to contact tracing. That means employers should identify employees who worked:
The CDC advises that anyone who had contact with the infected worker should:
Employees who need to stay home from work due to exposure to the virus are entitled to up to 80 hours of paid sick leave under the Families First Coronavirus Response Act (FFCRA). The Family and Medical Leave Act (FMLA) and your state's laws might provide additional rights.
In most cases, the CDC does not recommend shutting your business down if a single worker tests positive. Rather, employers should try to use contact tracing to halt the spread of the disease through their workforce. Doing so increases the chances they can keep their doors open.
When crafting a contact tracing policy for your workplace, clarity, notice, and transparency are key. Make sure your employees understand:
Traditionally, contact tracing involves interviewing an infected person to identify who that person spent time with. Today, however, digital technology often makes contact tracing easier and more efficient. Both methods are discussed in detail by the CDC.
Make sure you're prepared to implement contact tracing as soon as it becomes necessary. The key to stopping the spread of the virus is to identify those who have fallen ill before they can infect others. Proper preparation includes:
Encourage your employees to visit the CDC website so they understand you're following the advice of the experts.
Many employers are using different types of technology, such as smart phone apps and tracking devices, to trace exposure to the virus. In general, these methods record employee movements throughout the workplace using GPS devices or digital phone apps that rely on Wifi or Bluetooth.
If you're planning to go the electronic route, make sure you research the product you intend to use to determine whether it will be effective given the layout of your workplace. You should also train your employees to use the technology. A contract tracing app installed on an employee's phone, is useless if the employee doesn't know how it to use it or accidentally leaves the phone at home.
Finally, be prepared to interview employees as a backup in case the technology fails.
No federal laws prevent employers from engaging in contact tracing, but maintaining employee confidentiality should be one of your primary concerns.
While some employee privacy rights have been sacrificed during the pandemic—for example, employers are generally allowed to take employees' temperatures—confidentiality rules still apply when it comes to an employee’s medical condition.
Guidance issued by the Equal Employment Opportunity Commission (EEOC) states that employers can ask employees whether they have been diagnosed with COVID-19 and whether they are experiencing coronavirus symptoms. At the same time, employers must follow the confidentiality requirements set forth in the American With Disabilities Act (ADA). This means that an employer can reveal that someone in the workplace tested positive for COVID-19, but it can't reveal the name of the infected worker.
It's also important to understand the laws of the jurisdictions where you operate, especially if you're using digital technology to trace the virus.
For example, the California Consumer Privacy Act (CCPA) has a notice and consent requirement when it comes to collecting certain personal information about an individual. This could be important if you use an app that collects data.
Other states, including Illinois, Texas, and Washington, have laws limiting the use of biometric data—physical and behavioral characteristics that can be used to identify someone, such as fingerprints. Other states generally prohibit the use of electronic tracking devices. These states include California, Hawaii, Minnesota, and Virginia.
If you're unsure of the law in your state, consider checking with an employment lawyer before using contact tracing technology.
Contact tracing alone is not enough. To protect the health or their employees and customers, employers should implement a comprehensive set of safety measures based on CDC and other government guidance. These could range from social distancing and surface disinfecting policies to staggered schedules and remote working arrangements.
The CDC has published a Resuming Business Toolkit that is designed to help employers reduce the spread of the virus. The toolkit has a readiness checklist that provides guidelines on:
Employers who take proactive steps to reduce the spread of the virus in the workplace will have the best chance of maintaining a healthy workforce.
Scientists and medical professionals are constantly learning new information about the virus. As a result, guidance from the federal government is updated often. Employers need to keep up with these changes, especially when it comes to workplace health and safety. Check the Department of Labor's Coronavirus Resources page on a regular basis to stay up to date.