The Covid-19 outbreak has led many businesses to seek advice over how to protect employees while staying within the law on data privacy.
Areas of concern for firms have included what information exactly they can share with employees where someone is confirmed as having coronavirus; for example, what rights does a business have to share that person’s name with employees? There is also the question of companies wanting to temperature test employees – can they do this and is it permitted for them to store this data?
Coronavirus sickness absence
According to Alexander Brown, partner at Simmons & Simmons, businesses’ responses should be guided by their duty of care and simple common sense. He says: “Lots of people have worried what happens if someone tells me they’ve tested positive – what can I tell colleagues?
“They need to know that it’s fine to tell others under Data Protection Act… because this comes under ‘managing people’s vital interests’.
“It’s perfectly permissable to use the data to comply with employment legislation. We have a legal duty to keep people safe. It’s important to share names of employees so that people know there may have been some exposure.”
Companies also need to be mindful of their duty of care to visitors coming onto their premises.
Brown urges employers to be discreet but to understand that where they need to reveal that a co-worker has tested positive to their colleagues, they must do this without fears over data laws. He adds that the situation in 2000s when the failure to share information over data privacy fears saw people’s utilities cut off should be well and truly behind us by now .
In cases where offices need to be shut, and home working needs to be established, further issues over data sharing may arise. Some people may not wish to share personal contact details for work purposes, for example when creating a WhatsApp group for work purposes. In this case, says Brown, “You’d have to say ‘we do have to take measures to keep the business functional’.”
Simmons & Simmons has also fielded requests from employers for information about temperature testing employers. Can or should employers temperature-test employees and record the data?
Brown says: “Companies should not step into the shoes of medical services and start temperature testing. It all comes back to what is necessary when protecting the safety of employees.” Businesses should restrict themselves to giving employees guidance about self-isolating, personal safeguarding measures and working from home.
In Italy, the health authorities have told companies not to temperature test and have warned against a DIY approach to tackling the virus, stating: “The prevention of the spread of coronavirus should be carried out by those who are institutionally active in the field of immunosuppressive therapy.”
The Italian guidance also notes: “Employers must, however, refrain from collecting, a priori, systematically and across the board, including through specific information required from the individual worker or investigations not permitted, information on the presence of any flu-like symptom.”
For Brown, organisations are searching for the way forward. “Companies are testing their actions against the market. There’s a lot of comfort in acting in a way that’s consistent with the market.”
Another area where legal services were being engaged was over supply chain difficulties, such as those encountered by JCB and others who are to some degree dependent on east Asia. “Companies want to explore if and how they can get compensation for failure of suppliers to supply parts as per contracts,” says Brown.
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