As part of their “COVID-secure” return to work plans, some employers in the United Kingdom are implementing temperature screenings for their employees. One of the primary symptoms of COVID-19 is a temperature of above 38°C (100.4°F). A temperature screening can be considered a reasonable means for mitigating the risk of an outbreak within the workplace; however, there are issues that can arise from implementing the temperature testing.
The current government guidance advises individuals with a high temperature to self-isolate as a precaution; however, not all fevers are caused by COVID-19 and not all COVID-19 patients have a fever. Nevertheless, an employer’s decision to implement temperature screenings may be an important and reasonable method for potentially identifying infected employees and mitigating the risk of an outbreak within the workplace.
Employers should review the following practical tips when considering whether to conduct temperature screening in the workplace:
- Notify employees of the employer’s intention to take their temperatures and the purpose for conducting the screenings.
- Notify employees of any workplace implications if they refuse to submit to the temperature screening. Employees should be encouraged to inform their employers in advance if they object to a screening in case some of their fears may be alleviated.
- Encourage employees to take their own temperatures before reporting to work if they are not feeling well and/or are experiencing any COVID-19-related symptoms (e.g., fever, coughing, and shortness of breath).
- Remind employees that having a high temperature is not a confirmation of having COVID-19 and further screening may be required by a doctor.
- Consider the location of temperature screenings onsite in order to avoid congestion.
- Implement a plan should an employee have a high temperature, including designating a person with whom the employee can discuss the next steps.
- Use contactless thermometers at the screening site.
- Compensate employees for time spent having their temperatures tested.
Employers that decide to conduct temperature screenings of employees for COVID-19 purposes will want to be aware of the data protection laws. According to the United Kingdom’s Information Commissioner’s Office (ICO), because employers will be “processing information that relates to an identified or identifiable individual,” they must “comply with the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.”
The ICO has published guidance for employers on the data protection implications of workplace testing. Key points to note are:
- Data protection law does not prevent employers from testing employees and processing their health information for health and safety reasons in relation to employment. Employers need to be “responsible with [employee’s] personal data and ensure it is handled with care.”
- The guidance advises that employers that implement testing policies should only do so for legitimate purposes and should store results safely and securely. According to the guidance, confidential information should only be shared on a need-to-know basis and deleted when no longer required.
- According to the guidance, employers must be able to demonstrate their compliance with reasonable record keeping requirements when processing sensitive data. Employers can use the accountability principle to show that their processing of test data is compliant.
- One method of demonstrating accountability is through a data protection impact assessment (DPIA), which helps employers identify and minimise any data protection risks. According to the guidance, an assessment should set out:
- “the activity being proposed”;
- “the data protection risks”;
- “whether the proposed activity is necessary and proportionate” (the more intrusive the technology required to carry out the test, the greater the justification required);
- “the mitigating actions that can be put in place to counter the risks”; and
- “a plan or confirmation that mitigation has been effective.”
- The guidance states that employers should notify employees of how testing data will be used.
- According to the guidance, employees can be notified about “potential or confirmed COVID-19 cases amongst their colleagues,” however employers should refrain from naming individuals if possible.
The ICO also published a document setting out its “regulatory approach during the coronavirus public health emergency” to assist employers.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in its Coronavirus (COVID-19) Resource Center. Important information for employers is also available via the firm’s webinar programs.
Daniella McGuigan is a partner is the London office of Ogletree Deakins.
Carrie-Ann Hopkins is a paralegal in the London office of Ogletree Deakins.
