January 19, 2021

Volume XI, Number 19

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January 18, 2021

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COVID-19 Detection Dogs in the Workplace: A Viable Option for Employers?

As employees return to work, some employers are asking if there could be another tool to detect COVID-19 in the workplace: detection dogs. Traditionally, the military has used detection dogs to find bombs, and law enforcement has used them to sniff out narcotics, guns, electronics, or other contraband. More recently, scientists and researchers have used detection dogs to identify medical conditions.

While a new and promising use of science to identify COVID-19 and keep employees safe, the use of COVID-19 detection dogs in the workplace will require a careful evaluation of workplace privacy principles, disability laws, and discrimination protections.

For employers considering this option once it becomes available, there are some basic privacy principles to keep in mind. For example, the State of California emphasizes that the right of privacy is a seminal right for all Californians. In fact, the California Constitution confers a private right of action for individuals who believe their privacy has been violated. However, individuals must demonstrate not only that they believe their privacy was violated, but also that the violation was serious, they had a reasonable expectation of privacy, and that damages occurred.

Overall, courts and administrative agencies typically balance: (1) the individual’s expectation of privacy and (2) the government or business’s reason behind the action.

This test presents a new balancing act amid the COVID-19 crisis. After all, a couple months ago, few employers could envision requiring their employees to withstand a sniff from a curious canine when they entered the workplace. Now, however, such steps may keep not only the employee safe but also his or her colleagues, friends, and family. As a result, employers have a stronger argument to use detection dogs than they did a few months ago.

Like any new initiative, employers may want to consider their culture and workforce when deciding whether to use detection dogs. As with wearing masks, certain populations may be more receptive to detection dogs than others. For example, some individuals may be allergic to dogs or have a longtime fear of them.

Adding detection dogs to, rather than replacing, other screening mechanisms—and providing a chance to opt-out of this particular detection method—may prove to be safer (and more sympathetic) than just greeting already anxious employees with Fido on their first day back.

Companies that want to rely on man’s best friend to help keep workers safe from COVID-19 will need to consider not only these privacy issues but also the cost associated with   utilizing detection dogs once the technology becomes available.

Experts believe that companies could expect to pay upwards of $15,000 for the purchase of a trained COVID-19 springer spaniel detection dog once the virus scents are available to trainers to begin COVID-19 canine training programs. Workplaces may be a few months away from possible implementation and use of detection dogs, but asking how these dogs could be effectively and legally used in the workplace is more than an interesting hypothetical.

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© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 205
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Lisa M. Bowman Litigation Attorney Ogletree Deakins
Of Counsel

Lisa Bowman is an experienced attorney who provides strategic, business-minded advice to clients facing complex legal issues.  Ms. Bowman has litigated high-stakes, class-action lawsuits involving independent contractor classification, wage and hour disputes, and discrimination. She has represented and advised a wide variety of clients, including some of the nation’s largest financial institutions, in matters involving contract claims, financial regulations, and unfair competition. Her substantial litigation experience includes class certification briefing, depositions,...

415-369-3555
Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

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