The COVID-19 pandemic has been a novel experience for everyone involved. From stay-at-home orders, mask wearing, contact tracing, and now the possibility of vaccine passports, everything seems to be on the table to try to get life back to some sort of “normal”, whatever that may be.
Over the past year, the courts have heard a variety of COVID-19 related cases, dealing with different privacy aspects. Recently in New York, the Southern District court denied a petition by a children’s advocacy group for an injunction to halt random COVID-19 testing of students in New York public schools. The court found that students within the school environment have a lesser expectation of privacy than members of the general population, the test itself is not physically invasive (it is done through a nasal swab), and the testing program is premised on parental consent (parents are given two days’ notice, consent can be withdrawn at any time, and no child is tested against their will). Furthermore, in Canada, a court found that a retirement home COVID-19 policy is reasonable, after a labor union challenged the reasonableness of a unilaterally imposed COVID policy, which requires employees to be tested every 2 weeks. The policy is reasonable if one weighs the intrusiveness of the test (not very intrusive as it is not being used as a surveillance tool) against the problem to be addressed (i.e., to prevent the spread of COVID), and the outcome of the test is of high value to both the employee and employer. Also, across the pond we saw cases ..
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