Episode 74: Caveats to Using Virus Monitoring Apps

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers General Counsel and Executive Vice President. Returning to the podcast today is Jennifer Shaw of the Shaw Law Group. Welcome, Jennifer.

Hi, Erica. How are you?

I'm doing well, thank you. And thank you again for lending us your expertise.

Well, I'm happy to be here. And I just can't wait until we can do these back in the studio because I miss seeing you guys.

I know. I miss seeing you, too. And it's always so much fun to actually see you when we're talking to each other.

I agree. Sometimes it's the only time we get to check in. But I'm thrilled to do these calls and thank you so much for having me.

You're welcome. Well, today we're going to continuing on the COVID 19 train. Unfortunately, I think we'll be talking about this for a while, but I wanted to bring up somewhat of a novel issue, but one that is starting to percolate more and more, and that is COVID 19 monitoring apps and their impact on employers and even some of the privacy laws that we have in California. I've recently been reading about certain counties that are requiring employers to do symptom checks of their employees and then report back to the county. And, you know, they, some of the counties have created these really cool apps that the employee can go into and answer a few questions, and then the result is great, you're symptom free or, you know, something to that effect. I don't recall exactly what it says. And then the. So anyway, there's a lot that's going on about monitoring employees. And I know we've done a podcast previously about monitoring off duty work here. It's really talking about that symptom check that employers are being encouraged to do as a way of eliminating or minimizing the spread of COVID 19 in the workplace. So let's talk a little bit about this.

Well, it is such an important topic, Erin, really, because, Erica, the employers are just trying to meet their obligations, and we've talked about this in a number of different contexts in the past, that they want to make sure they're complying with their OSHA requirements and the Cal OSHA requirements to provide a safe workplace. They want to make sure they're following the EEOC and the CDC's guidance and the Department of Fair Employment and Housing's guidance about making sure that people are treated appropriately and that they maintain confidential medical information. And there are a lot of competing interests. Right. So without COVID 19 of course, you can't do a medical examination except post offer pre employment. So when you make a conditional job, for example, and only in very limited circumstances, now the enforcement agencies have said, okay, we get it, maybe you want to require a COVID test as part of return to work or as part of a situation where you are saying, look, we don't know if it's okay. We heard that you engaged in X conduct or you were on an airplane and we need to deal with that. So now we have employers who are trying to balance, okay, I know I have a few more rights in the area of testing and scaling and trying to figure out what people are doing, but there still are some limitations and there is some rub between the obligation for safety and these other legal restrictions on things that come about with medical conditions, for example, testing or even, quote, spying on what somebody's doing at home.

Right?

So the number of apps run the gamut. And some inquire a lot more information than others. Some might require you enter what your temperature is that day. Others are very, very bland, so to speak, where they simply just ask three or four questions of the employee. So, of course, whatever app an employer is considering is going to depend a lot on what types of questions are asked and how much confidential information does that app start to hold. And we can spend days talking about privacy, California Consumer Privacy act, of course, thankfully to all of us, including Jennifer and myself, for not going into that today. But you know, what are some good best practices and tips we can offer to our employers with regards to monitoring or keeping track or showing that you, as the employer, have put guidelines in place that does require a level of.

Well, one of the things that I think is so important is that we have to be transparent about what we're doing.

Right.

So certainly we need to be in a situation where we're saying, okay, here's our policy, here's our practice, this is what we're looking at, this is what we're doing. And then we have to have somebody internally who can actually deal with the requests, the issues, the challenges that are coming out of these kinds of, of issues. And that's something that's challenging, right, because.

Somebody will say, I don't want to come to work, or I don't want to be tested, or I don't want my temperature to be taken, or I don't want to complete that app, or are you going to pay for my cell phone bill? If you're going to make me use an app, I guess you will. So there's all sorts of stuff that I think employers don't think about when they're worried about the significant, by the way, liability that can come from an OSHA or Cal OSHA claim.

Right. And I'm sitting here just thinking, okay, so for those employers that have chosen to use an app, or maybe they're in a county that is requiring the use of an app or requiring some kind of reporting into the county, what are some things that we can offer them as far as what they should look out for? So, for example, there are some apps out there that don't ask for the name of the individual. They don't ask for any information with regards to what their temperature is. It might just be, do you have a fever today? Do you have a cough, a fever, a runny nose, a sore throat, kind of a symptom check. And the employee says, no, no, no, no. And it says, great, you're ready to go to work. And the app says, look, we're not going to be storing any of your data. Would that be an app that in general would be of all apps, what are the apps to use if you're concerned about privacy and those other issues?

Well, it certainly would help to have those provisions. Now, of course, it doesn't deal with the wage hour issue of how are you going to pay for this time, Right. So if you have a, you know, even if you're not storing the data, which is good because by the way, if you take someone's temperature, you have to store the data for 30.

If you take their temperature and you record it, you record their temperature personally, in some kind of a record, you have to keep that information. It's absolutely crazy. So a lot of folks are saying, look, I don't really want to keep that detailed information. All I want to do is do kind of a pass fail, right? So certainly what you're talking about would help on that issue of not having to keep all those records. But what it doesn't deal with are the wage hour implications when you have a non exempt employee and something that people don't think about. But I did a webinar on this this morning on culture, how to maintain your culture when you have telework folks. And these kinds of things can really be bad for culture. I mean, folks feel like, okay, 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. So it's not that we shouldn't do it, it's just that we Have. So, I think, ponder the cultural implications for our workplace. And, you know, let me just add this. Some of these ideas are not as beneficial as we once thought. When Covid first started circulating, we all were told, oh, well, the temperature is the be all, end all. If somebody has a temperature, you better keep them out of the workplace because they may have Covid. Okay, that's true. But 40% of people, according to a recent article I read, are asymptomatic. So when you think of all of the drama that's associated with taking temperatures, who's going to do it? What's the PPE that they're going to wear? How are you going to make sure that you maintain confidentiality? What are you going to do to make sure when somebody is told they have to go home that nobody sees that? Because that could be a privacy issue. So when you weigh all these things that people are doing, I feel like these apps are a little late to the party because some of the things that they're testing and reviewing are things that. That really have been determined to be of less use than we originally thought.

Mm. I think that's fair to say, especially when you look at technology and the development of products. And as fast and rapidly things are changing related to COVID 19, it's probably hard to stay ahead because there's so much uncertainty. Nobody knows what the next guideline is going to be or what the next issue is going to be as we continue to slog through 2020.

That's exactly right. And believe me, I'm not criticizing employers or the people developing these apps. I mean, I get what they're doing. They're trying to meet a market need. But the things are changing so quickly that employers really need to be aware of what the risks are as this technology is coming out and as the legal framework continues to change.

So, Jennifer, before we close.

The monitoring app were really designed, or I. I think I'm assuming they were designed and employers are attracted to them because it's providing an administrative assistance. An administrative assistance being the requirement of training your employees to know what the symptoms are, asking the employees if they're feeling okay maintaining that healthy workplace. And I get it, it's a difficult task to do. But there are other ways that employers can meet those obligations without having to utilize an app or even temperature checks, notwithstanding the fact that some industries, they are required to do the temperature checks. But in many industries, they're not. What are some things employers could do that are less invasive? And what I mean by that is, you know, for some individuals, the fact that their employer is taking their temperature could feel very invasive. What are some other things employers can do?

Here's the bottom line. I think employers need to first go to the governor's website and look at the resilience roadmap. And I know I've mentioned this a number of times on the webinar or our podcast, but here's the deal. The governor of the Department of Public Health and Cal OSHA have been very, very specific about what people should be doing and how employers should be dealing with this crisis, both in terms of employees who are currently working and employees who are returning to work. So because of that, I really feel like this idea of, you know, what can we be doing? Well, part of it is let's look at our local guidance and our state guidance to make sure that we really understand what our obligations actually are, because those things are super important. And I think sometimes we get so overwhelmed with the national requirements that we forget about the local stuff.

That's really important, especially for those of us that are in local counties that have been hit harder by the COVID 19 virus than others. The local counties do have specific requirements that go beyond what the state and federal requirements are. So it is very important to you. Yeah, really important. And it includes posting. Posting. You know that you've checked all the boxes on the county provided checklist. So that's a really, really good tip, Jennifer, to leave all of our listeners with today.

So, Erica, I totally agree. You know, what's interesting is there are so many topics that we can address and that we have addressed on this podcast and sometimes we don't have a lot of time to go into really a lot of detail about issues. But my goal, and I know yours is as well, is just to raise some of these issues for our listeners so they can go out and think about them and ponder them. There's so much going on in the world right now that I don't really want to inundate people with a bunch details. But I think what we've been able to do successfully is just raise some of these sort of obstacles that can come up in the workplace so employers have an idea where to turn.

You're absolutely correct. That is such a huge goal of this podcast and why we started them, and invite guest speakers such as yourself, Jennifer, so that we can provide information, tidbits, little nuggets of information so that employers, like lawyers, issue spot, know and can recognize that maybe there is something that they have encountered or has come to their attention that they need to follow up with or reach out to Cal Chamber, contact the Labor Law Helpline, contact your legal counsel, and see whether or not anything needs to be done.

That's exactly right. Exactly right.

Well, Jennifer, it's always such a pleasure to have you on the podcast, and like you said, it's a really great way within which to get information out to California employers in a very fast and efficient manner. So thank you for taking the time out of your day to come join us today.

I love doing this. It's so fun. Thank you so much, Erica.

And thank you all for once again joining us on the Workplace. Stay up to date on the most critical issues for employers, and please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.