Contact tracing is a process in which individuals are notified if they have been in contact with another individual who has tested positive for COVID-19, or the coronavirus. Contact tracing helps protect the individual, their loved ones, and their community.
Contact tracing helps in the following ways:
- It alerts individuals who may have been exposed to COVID-19 and advises them that they should monitor their health for symptoms of COVID-19;
- It encourages individuals who may have been exposed to COVID-19 to get tested for the virus; and
- It requests that individuals who have been exposed to the virus to self-isolate or self-quarantine.
The Centers for Disease Control and Prevention (CDC) may perform contact tracing if an individual tests positive for COVID-19. A staff member from the health department may contact individuals who came into contact with the individual who tested positive for the virus.
It is important to speak with an individual from the health department if they do call. Any discussion with these individuals is confidential. Medical information will only be shared with individuals who need to know, such as health care providers.
The health department will not share an individual’s name with others. The health department will only notify close contacts that they may have been exposed to the virus.
Can My Employer Require Me to Submit to Contact Tracing Measures?
Employers are required to provide a safe work environment for their employees pursuant to the Occupational Safety and Health Administration (OSHA). An employer may restrict access to a facility by an employee who poses a direct threat to the health and safety of others if there is a business necessity for the restriction, such as providing a safe work environment.
The Equal Employment Opportunity Commission (EEOC) has categorized COVID-19 as a direct threat. The restriction used by the employer must serve a business necessary and not be more intrusive than necessary.
The EEOC has provided that employers may require employees to have a medical examination. This may include COVID-19 testing and body temperature check for their employees as long as they are job-related and consistent with the business necessity.
If an employer learns an employee has been diagnosed with COVID-19, they should notify other co-workers who may have been exposed. A worksite investigation should be conducted, usually by the human resources (HR) department, similar to a smaller scale contact tracing performed by public health officials.
Employers must take care to maintain the confidentiality of their employees. Employers should put policies in place for contact tracing processes. They should make those policies available to all employees which notifies them that if they contract the virus, they will be asked to provide a list of contacts at the workplace.
According to the EEOC, employers have the right to ask their employees if they have symptoms of COVID-19 or have been diagnosed with the virus without violating the Americans with Disabilities Act (ADA). However, the identification of the infected employee should not be disclosed.
What if I Feel My Rights Were Violated Due to Contact Tracing Issues?
In the past, contact tracing was conducted by individual interviews and on paper. With the advances in technology, contact tracing can now be done by electronic means.
Some states and countries are employing Technology Assisted Contact Tracing (TACT) which uses a form of proximity tracking, such as GPS or bluetooth. Some states have already announced they will be using this technology to trace contacts. These states include:
- North Dakota;
- Alabama; and
- South Carolina.
There are, however, privacy concerns with any data gathering, especially electronic. For electronic tracing, a phone app may be used that will require consent and data encryption.
There are no federal laws which prohibit employers from contact tracing. In the context of the employer-employee relationship, however, the employer must keep COVID-19 related information private.
Pursuant to the ADA, employers can reveal that an individual in the workplace tested positive for COVID-19. However, as noted above, the employer cannot reveal their name.
It is also important for the employer to research privacy laws in the specific state in which they are operating as privacy laws vary by state. Some states generally prohibit the use of electronic tracking devices. These states include:
- California;
- Hawaii:
- Minnesota; and
- Virginia.
If an individual believes that their privacy has been violated, they should consult with an attorney as soon as possible. They may be entitled to monetary damages if they file a personal injury lawsuit in civil court.
What if My Employer Failed to Follow Contact Tracing Requirements?
There are significant legal hurdles an individual must overcome in order to sue their employer outside of worker’s compensation because they got sick at work. In certain limited circumstances, an individual may be able to pursue legal action against their employer if their employer did not take the proper precautions and they contracted COVID-19.
In some cases, an employer may fail to take adequate precautions, such as failing to rearrange schedules to allow for social distancing and failing to sanitize the workplace. Whether or not an individual may sue their employer if they contract the virus depends on the laws of their state.
In some states, pursuant to the intentional wrong exception, the plaintiff must prove that the employer knew their actions were substantially certain to result in injury or death. In other words, the employer’s action essentially must have been intended to harm employees. This may be impossible to prove when dealing with a highly infectious disease.
In other states, the employer is only required to know there was a substantial certainty that their actions would result in injury or death. It is also unclear at this time how courts will view these issues in light of the evolving guidelines from the federal government, state, and local authorities.
If an individual is concerned that the conditions at the workplace are putting them at risk, they may raise the issue with their employer. If that is not successful, they can file a complaint with OSHA.
Taking the step to file a complaint with OSHA can assist in providing an individual with evidence in the event that their employer engages in relationation as a result of the complaint. Employers are not permitted to discipline an employee, fire an employee, or retaliate in any other manner for filing an OSHA complaint.
Employees also have rights during the COVID-19 pandemic, which includes the right to refuse to work in hazardous conditions if they are in imminent danger. If an individual is terminated for taking this step, they may be able to sue for wrongful termination. In addition, an employee may be able to file a lawsuit for wrongful constructive termination if they were forced to quit due to an unsafe work environment.
What if I was Wrongfully Terminated Due to COVID-19 Contact Tracing Issues?
Pursuant to the Families First Coronavirus Response Act (FFCRA), employees are permitted to take 80 hours of paid sick leave if they are required to stay home from work due to exposure to COVID-19. There may be additional rights available under the individual’s state laws and the Family and Medical Leave Act (FMLA).
If an employee is terminated after they notify their employer that they need to take leave pursuant to the FFCRA, they may have a case for wrongful termination. It is important to note that many states are at-will employment states, meaning an employee may be terminated for any reason.
However, there are protections in place against discrimination when terminating employees. This also applies to the COVID-19 virus and employees who are required to self-quarantine or care for others, such as children, who cannot attend school or child care due to the virus.
Do I Need an Employment Lawyer for Help with Contact Tracing Issues at My Work?
Yes, it is essential to have the assistance of an experienced employment lawyer for any contact tracing issues you may have at your work. The laws regarding this issue are changing, sometimes, daily, and an attorney is best equipped to understand the changes.
Your attorney can review your case, determine if you have the basis for a claim, and assist you in filing a lawsuit, if necessary. It is essential to contact an attorney as soon as you possibly can to ensure evidence is preserved and give you the best chance at prevailing in your case.
