In Episode 74 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw discuss the use of COVID-19 symptom monitoring apps, and whether they are effective tools for maintaining a healthy workplace.
Numerous phone apps have come on the market that help employers keep track of their employees’ symptoms. Some ask only a few basic questions—such as “Are you experiencing a cough?”—while others keep track of employees’ temperatures.
Given that some counties are asking employers to report the symptoms of their employees, such monitoring apps may provide a streamlined way to provide the data back to the county, Frank says. But what are the liabilities for employers?
Before the COVID-19 pandemic crisis, medical tests could be performed only after a worker was hired, and even then, the employee could be tested only under very limited circumstances, Shaw explains.
Now, because of the virus outbreak, employers have an obligation to maintain a healthy workplace, which means testing for symptoms, she says.
Nevertheless, there are still legal restrictions, and there is a difference between testing and spying on what someone is doing at home, Shaw tells Frank.
If an employer decides to use a monitoring app, Shaw recommends that the employer be transparent and clearly outline to employees what the company policy and practice is.
She also advises that employers designate someone to handle monitoring requests and any challenges that may arise, such as if an employee doesn’t want to get tested, or requests their cell phone bill be paid for by the company since they have to keep the app on their cellphone.
Even for the apps that don’t store personal data and do not record an individual’s name or specific temperature, numerous liabilities will be present. For example, employers will still need to abide by wage-and-hour laws if a nonexempt worker is asked to use the app, Shaw explains.
Another downside to using a monitoring app is that it may be bad for workplace culture.
“These kinds of things can really be bad for culture,” Shaw says. “…Folks feel like ‘OK, I’m already dealing with all this stuff that’s going on out there in the world, and now I have my employer who seems to be getting really nosy.’”
Shaw also points out that in many ways, these apps are a little late to the party. It was once thought that a fever was the clearest indicator of infection, but recent research shows that up to 40% of people with COVID-19 are asymptomatic. Therefore, a symptom checker may be of less use than originally thought, especially once one factors in the logistics of who will be taking the temperature and having to provide personal protective equipment (PPE).
Still, Frank says, apps may offer administrative assistance for employers, such as providing employees basic training on COVID-19 symptoms or giving employees tips on maintaining a healthy workplace. But, she points out, there are other less invasive ways to do these things without having to utilize an app.
Shaw recommends that the first thing an employer should do is review the Resilience Roadmap on the California COVID-19 government website, which is put together by the California Governor’s office and California Department of Public Health.
The Resilience Roadmap features specific guidance on how employers should be dealing with both employees who are currently working and employees who are returning to work, she says.
Shaw stresses that it’s important for employers to look to local and state guidance and understand what their obligations are.
“Sometimes we get so overwhelmed with the national requirements that we forget about the local stuff,” Shaw says.
Frank agrees, adding that in some cases counties place requirements that go beyond state and federal orders.
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