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.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.
