This article is adapted from The Legal and Social Ramifications of Pandemics on Civil Rights and Civil Liberties, edited by Claire L. Parins and published by the American Bar Association’s Civil Rights and Social Justice Section.
Prior to the pandemic, employers did not typically collect employee health-related information except through certain work wellness programs or in relation to documenting workplace injury claims. There was an emerging trend in “wellness” programs where individuals would be encouraged to use wearable health devices, such as pedometers or other fitness trackers, through incentives or other benefits, but these programs did not typically involve any data collection by the employer itself. But in response to the pandemic, many employers began to collect and monitor employee health-related data as part of their workplace health protocols.
Workplaces implemented a wide range of systems, including symptom screening surveys, automated exposure notification systems, and temperature checks. In some cases, most notably in professional sports leagues, employers began using mobile apps and wearable devices to track employee health symptoms or to remind employees to maintain social distancing. As with surveillance systems deployed in schools, these new workplace surveillance systems had not been tested or shown to be effective in controlling the spread of disease.
While reliance on these devices and systems was intended to encourage employees that workplaces were safer, these mitigation measures by themselves were not enough to prevent the spread of COVID-19 in workplaces. Many of the systems were also expensive and likely took away from resources that could have been used to improve ventilation and air quality, which appear to be more effective at curbing viral transmission. And meanwhile, these systems pose significant privacy risks and subjected employees to increased surveillance in the workplace.
The nature of the employer–employee relationship and the sensitivity of health information make the collection of biometric data in the workplace especially risky.[1] The misuse of health data could lead to adverse employment decisions, discrimination, or exclusion. Despite the risks and potential misuse of this data, employees may be unable or unwilling to protest for fear of losing their jobs. This was especially true early in the pandemic when unemployment was widespread and the financial circumstances for many employees were dire. Any claims that employees have given informed consent to participate in these systems are dubious at best.[2]
The rise of employee health tracking during the pandemic also further entrenched existing power imbalances that impact certain categories of workers. Employers taking an interest in the health of their workers increases scrutiny on workers that have underlying health conditions. These employees could be denied promotion opportunities due to their underlying health condition or could be seen as uncooperative or not devoted to their workplace if they refuse to participate in workplace health monitoring. There are currently no comprehensive data privacy laws that regulate health surveillance in the workplace.
Employers should, however, proactively weigh the risks and benefits of implementing these technologies and be transparent when doing so. Employers should also review their policies and data collection practices to ensure that they do not overextend systems that were specifically adopted in response to the pandemic but may no longer be justified given the current state of public health.
Elizabeth A. Brown, A Healthy Mistrust: Curbing Biometric Data Misuse in the Workplace, 23 Stan. Tech. L. Rev. 252, 257–8 (2020). ↑
See id. (suggesting that consent to data collection practices cannot be voluntarily given because it is not economically feasible for most individuals to seek out an employer that appropriately collects, uses, and protects the individual’s data); Sharifah Sekalala et al., Analyzing the Human Rights Impact of Increased Digital Public Health Surveillance during the COVID-19 Crisis, 22 Health Hum. Rights J. 7, 11–12 (Dec. 2020) (asserting that where employers made surveillance measures mandatory, consent was rendered “irrelevant”). ↑
