As the COVID-19 pandemic continues to devastate the United States, the federal government has largely failed to implement a national program to prevent and contain the virus. As a result, many employers have undertaken their own workplace coronavirus mitigation efforts. This essay examines, in three parts, the legal framework surrounding employer systems of workplace testing, tracing, and disclosure. It first examines the legal issues surrounding employer-mandated COVID-19 testing and temperature checks, especially issues arising under the Americans with Disabilities Act (ADA) and Health Information Portability and Accountability Act (HIPAA). Regarding employer contact tracing efforts, the essay next reviews the multitude of new digital tools and applications designed to aid in contact tracing and how these may implicate various state and federal privacy laws. Finally, the essay looks into employer disclosure of employee infections, including legal ramifications under the ADA, HIPAA, and other privacy laws. Our conclusion: employer testing, tracing, and disclosure programs are legally feasible but require careful planning and execution to protect employee privacy interests.
Bodie, Matthew T. and McMahon, Michael, Employee Testing, Tracing, and Disclosure as a Response to the Coronavirus Pandemic. Washington University Journal of Law and Policy, Vol. 64, 2020, Saint Louis U. Legal Studies Research Paper No. 2020-23, Available at http://dx.doi.org/10.2139/ssrn.3667212.