Originally published by Jennifer Spencer.
In the simplest possible terms, contact tracing is a way of tracking all the individuals who have come into contact with an infected or contagious person. Given the current pandemic, contact tracing – and particularly contact tracing apps – have grown in popularity as countries are trying to find safe ways to return to a state of normalcy.
While contact tracing apps may seem brand new, contact tracing as a public health strategy is nothing new. It has been used successfully to reduce outbreaks since the 1930s. Many health experts claim that contact tracing is the key to safely reopening.
Some employers have been quick to jump on the contact tracing bandwagon, for better or worse. As employees, you might be wondering whether contact tracing is necessary, effective, or even safe. You aren’t alone. Many people, worldwide, have growing concerns over the combination of technology and contact tracing, particularly whether private information may be misused.
In this article, we will jump into some of the more common concerns about contact tracing and how to best protect your own privacy. First, let’s take a look at some of the contact tracing technology that is out there.
At Jackson Spencer Law, we represent employees who have questions about their workplaces’ responses to COVID-19.
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Contact Tracing Technology
Contact tracing apps notify users if they have come in contact with someone who tested positive for COVID-19. Many of these apps can be downloaded on an individual’s smartphone and they then track other devices that come within close proximity to the user. If someone who comes close to you later reports having the virus, you will receive a notification via the app.
Not all of the contact tracing apps are created equal. Some apps are particularly invasive while others simply ask screening questions. According to ProPublica, some contact tracing apps are so thorough, they gather everything from a person’s phone and credit card information to where they sat in a restaurant. While that process seems to be working well in places like South Korea and Hong Kong, that would probably not go over well in the United States.
Manual contact tracing, which may not be perfect, is still highly effective at reducing transmission of contagions while maintaining a semblance of personal privacy.
Some apps may even be used in conjunction with manual contact tracing to reduce health risks without compromising privacy. For instance, some health departments are considering automated text messages to help check in on symptomatic or quarantined individuals. This might lower the number of follow-up phone calls (and employees needed to keep up with contact tracing efforts).
Is Contact Tracing Necessary or Required?
The United States have not made contact tracing a requirement at the national level. However, some local governments have attempted to implement contact tracing to reduce community spread.
Part of shifting back to a more normal pattern of working, shopping, and existing outside of quarantine will involve robust contact tracing. As people get out and interact more with others, the more likely they are to come in contact with someone infected with coronavirus.
While contact tracing may be a safe and effective public health strategy, it does not necessarily need to involve invasive technology.
How Can I Protect My Privacy?
A lot of employers are making use of contact tracing apps voluntary to prevent backlash. But can contact tracing be effective if it is voluntary?
In a nutshell, employees are in a tough position, where they must balance their personal privacy concerns with their own health (and the health of the general public).
Unlike the EU (European Union), the U.S. does not have general data protection privacy laws like the GDPR or the ePrivacy Directive. This means U.S.-based apps will not be subject to a universal privacy standard and will require extreme vetting on the employer-end.
Employees and employers should inquire what information is being collected by an app, why, and how the information will be stored. For instance, will the collected data be stored on your individual device, on a separate server, or in the cloud? Also, how long will the data be stored? Exactly what information will the app share with others? As an employee, you should also question whether the app collects any additional data, like cookies, or tracks your use of other apps.
Here are some things that we recommend you ask your employer before using any contact tracing apps:
- Does the app collect biometric information (like your temperature)? Some states (including Texas) have laws that require biometric information, much like other protected health information, to be held in strict privacy.
- What are the app’s Terms of Service? Does the app developer have a duty to notify users of a privacy breach (like a hack)?
- Will the app reveal the identify of individuals who test positive? Legally, neither the app (nor an employer) should reveal identifying information for anyone who has tested positive for coronavirus. It may be legal for an app to notify you that you have come in contact with an infected individual but should never reveal their name. Employers who reveal identifying information could be in violation of the Americans with Disabilities Act.
- Will the app collect geolocation data? If so, will the data remain anonymous and encrypted? Any location data should be used strictly for reducing the spread of COVID-19 and not for purposes other than protecting employee health.
- Has your employer implemented confidentiality policies regarding contact tracing? All employees should be educated as to how contact tracing information will be used and what will happen to the data when it is no longer relevant. Your employer should provide you with a copy of their confidentiality policies before requiring app usage.
- Ask your employer if they have considered whether HIPAA (Health Insurance Portability and Accountability Act) regulations will apply to their collection of data. Unfortunately, the answer to this question is not so clear-cut, because not all employers are subject to HIPAA regulations. Either way, you should know whether your employer is obligated to comply with HIPAA regulations, and whether the app violates any of those rules.
Ultimately, you want to ensure your employer has reviewed their legal obligations and vetted any contact tracing apps before requiring their use in the workplace. Your employer should then empower all employees to ask questions, so that the use of any contact tracing technology is completely transparent. The more you know about your employer’s health initiatives, the safer you can feel returning to work – without compromising your own privacy rights.
We Can Help You Protect Your Health and Privacy
We strongly support preventive health measures, especially when employers use them to create a safe environment for workers. At the same time, we value employees’ privacy rights. With great technological advances, it’s easy to see how individuals’ data can be abused. Employers need to responsibly balance their employees’ rights to work in a safe environment with their right to privacy.
If you have concerns about contact tracing in your workplace or feel your employer is misusing your private information, contact our office for more information. We can help you determine if your rights are being violated and how to best protect yourself in the workplace.
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