The loss of lives, livelihoods, businesses and long term effects on mental health and culture are far from complete, yet already devastating.  Now, employers grapple with the most significant decision they are likely to ever make: when to come back to work and how.

Many employers will be lured into the siren song of safety above all else and succumb to a balancing act that tips heavily in favor of control and surveillance over individual liberty.  I fully understand the impetus.  Employers find themselves in a tricky Catch-22.  They must do that which is reasonable to protect the health and safety of their workers without trampling on employee privacy, health or liberty. 

As the attorneys at Ropes & Gray LLP point out, "[e]mployers looking to introduce these apps may point to their duty under the Occupational Safety and Health Act ("OSHA") to furnish to workers 'employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.'"  But as Americans, we have far more individual liberty protection than people in the Asian countries that are months ahead of us and have already implemented sever state, local and employer controls.  For example, "China has already introduced virtual health checks, contact tracing and digital QR codes to limit the movement of people. Antibody test results could easily be integrated into this system."