Andrew McCarthy says companies can likely make employees use contact tracing app before return to work

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Andy McCarthy's legal concerns over 'contact tracing'

'Government is assuming their regulations have priority and we have adjust our rights,' says Andy McCarthy, former Assistant U.S. Attorney, discussing if 'contacting tracing' is legal

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Former federal prosecutor Andrew McCarthy told "The Daily Briefing" Thursday that he is "suspicious" of potential legislation that would protect businesses from coronavirus-related liability as many states look to start reopening businesses shuttered in response to the pandemic.

"I think there's a case to be made for immunity for businesses, especially if we want to encourage them to reopen," McCarthy told host Dana Perino. "I'm very suspicious of the idea of a sweeping one, and  ... that's why we have Congressional hearings before we do this kind of legislation."

On Wednesday, White House economic adviser Larry Kudlow suggested legal protection for businesses that choose to reopen, telling CNBC that companies should be protected from “trial lawyers putting on false lawsuits” in the event of an coronavirus outbreak in the workplace.

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"No one wants to see the businesses subjected to frivolous lawsuits under circumstances where they are following good business practices and someone who works for them contracts the disease," McCarthy explained.

"On the other hand," he added, "I think people would be uncomfortable with the idea of immunity if a business were forcing its employees or coercing them to engage in behaviors that were likely to up the spread of the disease ... so I think that's all got to be worked out, but I think it's the right direction. It’s just there's got to be some limitations on it."

Some experts have floated the idea that some companies should require employees to download an app currently being developed by Apple and Google to monitor widespread contact tracing as a way to contain the virus and ease companies and their employees safely back to work. According to McCarthy, such requirements would be conditions of employment, and not constitute an illegal violation of privacy.

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"That would be a condition of your employment," he said. "That's very different than if the government were to coerce you to do it.

"I think if an employer wants to require that as a condition, that's a private employer, that seems OK to me...but what I'd be more concerned about is the government warehousing this information and using the surveillance for purposes other than public health."

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McCarthy added that the app has "a lot of legal concerns" and called on the federal government to "show that a restriction that they want to impose is rationally related to public health and it's something that needs to be done in order to blunt the spread of the disease.

"I think we would be in a lot better shape than what we have now, which is the assumption by these governments that their regulation is what has priority and [we] may have to adjust our expectations about our fundamental rights to what they think is necessary or essential," he said.