Contact Tracing Cell Phone Apps and Wearable Devices: The Fourth Amendment Issues Confronting Public Employers

Marc Chase McAllister

Under the Occupational Safety and Health Act, employers have an obligation to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” According to the Occupational Safety and Health Administration (“OSHA”), COVID- 19 falls within the scope of this law, and requires employers to take affirmative steps to reduce COVID-19-related hazards in the workplace. Contact tracing technologies, the focus of this Article, are one way for employers to meet this legal obligation. The COVID-19 pandemic has rapidly accelerated the development and use of employee surveillance technologies, with “some employers planning to track movements and gather personal information like never before in Western democracies.” Focusing on public employers, this Article examines how the most commonly used contact tracing technologies impact the Fourth Amendment rights of employees. More specifically, this Article examines whether employer use of contact tracing technologies amounts to a Fourth Amendment search or seizure, whether the workplace exception to the warrant requirement would permit contact tracing programs, and which specific technologies are most likely to be upheld as reasonable under relevant Fourth Amendment precedents. This Article concludes that the least invasive tracing technologies are contact tracing cell phone apps and wearable contact tracing devices provided by employers, which generally rely on Bluetooth rather than GPS technology. For those technologies, in particular, this Article concludes that the Fourth Amendment is likely not implicated because an employer’s use of such technologies would not constitute a Fourth Amendment search or seizure of the employees instances where the Fourth Amendment is implicated by these technologies.