With pubs, restaurants, cinemas and hairdressers set to open next month, many more people will be returning to work over the coming weeks – and some employers may be considering temperature checks. Jo Moseley looks at some of the legal considerations.
Last week, non-essential retail businesses were able to reopen to the public and other sectors such as hair salons and hospitality will be able to open from Saturday 4 July.
No business can re-open until it’s “Covid-Secure”, which means that its safe for staff and customers to return. Each business has to undertake a risk assessment and put in place steps to protect individuals from the risks of catching the disease. The government has published eight separate industry guides to help organisations prepare; none of these specifically mention taking temperature checks, but they have some potential benefit.
You must not suspend, discipline or dismiss someone who refuses to be tested, unless you have a clear contractual right you can rely on.”
Temperature checks are commonly used in some countries as part of their strategies to combat the disease. According to the Centers for Disease Control and Prevention, coronavirus symptoms can develop anywhere between two and 14 days after exposure – meaning someone can have the virus and not know it. One of the key symptoms of coronavirus is a fever or temperature of 37.8C or higher, often accompanied by a cough or loss of the sense of smell or taste. But not everyone develops a fever, and we now know that people can be carriers without having any discernible symptoms at all.
This means that temperature checks will not always be effective and shouldn’t be used as a substitute for other measures such as observing social distancing in the workplace and making sure shared areas are cleaned more regularly.
Do employees have to comply?
Generally, you can’t take anyone’s temperature unless they agree – either at the time you ask them, or you can rely on an express clause in their contracts of employment. In both cases, you should explain why you want to do so, who will take their temperature, what you will do with the information and the steps you will take if their temperature is high (such as send them home).
You must not suspend, discipline or dismiss someone who refuses to be tested, unless you have a clear contractual right you can rely on.
What will you do with the data?
If you take someone’s temperature, the information you collect will be ‘special category data’ and is subject to important safeguards set out in the General Data Protection Regulation (GDPR).
Before you can process that information, you must:
- identify the legal basis you are relying on (Article 6 GDPR), such as pursuing legitimate interests, and
- identify the special condition you are relying on (Article 9 of GDPR), such as considering whether it is necessary to use health data in order to comply with your employment obligations.
Bear in mind that you can’t usually rely on an employee’s consent (even if freely given) in the context of an employment relationship because it’s assumed that the employer has greater bargaining power than its staff.
Some clients have asked if they can avoid GDPR concerns if they just put a tick or cross against the name of each member of staff who has had their temperature taken on a particular day to record if it was normal or high. Our view is that this will still fall within the controls of GDPR as even this limited use is ‘processing’ from a GDPR point of view. Even if you don’t create any records at the time you make the checks, if you send someone home you will need to record the reason for their absence – and that will create a written record and is also likely to amount to processing.
There are also other practical issues you may also have to think about, such as where the temperature checks take place. Will these take place in a public space, such as the entrance to a shop or factory? If CCTV is installed, it will create a record and that information can only be processed in accordance with GDPR.
What does the ICO say about temperature checks?
The Information Commissioner’s Office has published guidance for employers under its coronavirus recovery pages which includes separate pages on surveillance (which is where temperature checks are discussed) and testing (which provides more detailed advice on other methods of testing).
The ICO considers that temperature testing is ‘intrusive’ (and almost akin to CCTV monitoring) and says that employers should only use it if it is necessary and proportionate to do so. Our view is that it won’t be appropriate in those workplaces where social distancing can be maintained and other steps can be taken to reduce the risk of transmission. So, for example, it’s unlikely to be proportionate to use it in an office environment, but it might be in a health setting where the risks of exposure are much higher.
If you are going to use temperature checks, we recommend that you undertake a data protection impact assessment (a risk assessment of what you propose to do from a data protection point of view). The assessment will need to set out:
- the activity being proposed
- the data protection risks
- whether that activity is necessary and proportionate
- the mitigating actions you can put in place to counter the risks, and
- a plan or confirmation that mitigation has been effective.
You must also be very clear, open and honest with your employees about how you are going to use their personal data, the decisions you will make with that information and how long you intend to keep it.