Over the next few weeks, we expect to see the American economy re-opening. Although it’s not entirely clear what that re-opening will look like, businesses will start calling their employees back to work one way or another.

With that re-opening comes concerns about a second spike in COVID cases. Many companies are looking for ways to protect their employees, prevent shutdowns, and avoid liability from employees getting sick at work.

As such, the newest workplace technology may be contact tracking technology. This technology purports to track employees to monitor who has come in contact with whom. That way if someone tests positive or is diagnosed with COVID, the company can alert the other employees who were in contact with the individual.

This seems like a great idea on its face. It protects employees and avoids the possibility of having to shut down entire divisions or floors of a company when someone is diagnosed with COVID. It helps everyone.

Or does it?

There is a sinister side as well. These apps or technological devices track our movements, which may trample on privacy concerns. Will they track people at home? Will they stop being used once the pandemic has passed? How much data are we actually giving up?

These are legitimate concerns. Let’s break it down and discuss the possibilities and legalities of this technology.

Technology Available

There are a few options available to companies wishing to track employee movements and contacts. The first form is based on smartphones. Tracking on smartphones is not particularly new, we already have GPS for our Google Maps, but this will be the first use for employees within an office.

GPS technology can be used to track workers. It has the advantage of identifying locations the employee frequents and other employees he or she came in contact with. That way, when someone gets sick, the company can isolate the areas where the person traveled and the people who came in contact with them. This avoids over-alerting people and over-quarantining employees.

The primary negative with GPS technology is that employers actually know the exact locations of their employees. This makes privacy experts very nervous for good reason. Who’s to say how that data will be used. Will we limit bathroom breaks? Or will employers use it to monitor where employees have traveled outside of the office, say, when they go to a job interview at a competitor?

Bluetooth technology, on the other hand, works by having devices sense other devices around them. An employee’s phone can sense another employee’s phone and determine how close they came to one another. This has the benefit of alerting employees when they come in close proximity to someone who has been diagnosed with COVID. That way companies don’t have to over-quarantine when someone gets sick. They can simply notify the people most likely to have been infected.

Bluetooth technology has the other benefit of being a decentralized network, meaning that the phones know who they have been close to but not exactly where they were. This is generally a preferable method of tracking contacts because it doesn’t literally track employees’ locations.

For more technological options for use with smartphones, check out this article by Fast Company here. There are also some details on an app created by PwC here.

There is another area of technology that may get traction in contact tracking: tracking via Bluetooth beacons and long-range, low-power LoRaWAN networks.

Microshare is a company offering Bluetooth enabled badges, key-rings, or wristbands. When these devices come in proximity to another device, they note the contact in a central database. More details on this product can be found here.

This technology has the benefit that it does not rely on smartphones. Therefore, you don’t have to count on employees installing the software or carrying their phones. In fact, it’s ideal in a work environment where employees would not normally be allowed to carry phones like manufacturing, security, and prisons.

It also has fewer privacy complications because workers would not need to wear the device home. Therefore, there would be no concern about being tracked outside of work.

Is It Legal?

I found a dynamite article that went into a ton of detail about the legalities here. I will not go nearly as in-depth, but I will sum up what I know.

The short answer is yes, it’s legal to track your employees. However, you may only track employees to the extent necessary to meet a legitimate business concern, namely keeping people safe from COVID. A legitimate business concern is a factual determination and some businesses will have more concerns than others.

Consider, also, OSHO requirements which state that employers must furnish a place of employment free from recognized hazards that are likely to cause death or serious physical harm. Companies are required to comply with these standards. (Though, there is some debate as to whether COVID is “likely to cause death or serious physical harm.” I will not debate that here).

A company that has employees who generally work remotely and don’t come in close contact with one another, say a trucking company or professional services company (like accountants), may not have a legitimate business concern that allows for tracking of workers because the likelihood of spreading COVID is relatively low. But a company where presence is required and close contact is the norm, like a packaging plant or hospital, has a clear legitimate business concern.

Like everything in the law, this is a gray area and the facts will determine how a company is treated by the courts.

Will This Be Long Term?

No one knows. I think once we have these devices or apps, it will be hard to get rid of them. There will always be another pandemic or other reason to track employees. Like I mentioned in a previous post, we are passing laws much like we did after 9-11. Not all of these laws will be good. It’s not clear what courts will do regarding our privacy laws. I expect that there will be numerous legal battles regarding privacy in the coming years.

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