What steps can employers take in respect of employee health?
I was recently asked whether, during this pandemic, an employer can lawfully conduct temperature checks on employees, workers, and visitors on entering the employer’s premises.
While many businesses have closed, those that are still operating are still trying to operate as normal (whatever the new normal is), subject to following strict protocols to protect health and safety of staff and customers.
However, while the majority of people have been willing to engage and apply the social distancing rules, in some workplaces it can be difficult. Further, huge numbers of people are struggling with the decision between working; providing and affording the mortgage/rent, in contrast to the anxiety of going in to do that work and the risk of catching the virus. The decision can have huge consequences on finances, mental health, and family life. The employer meanwhile has to contend with trying to stay open, provide for increased demand and manage the health and safety of those staff who are working.
Therefore, in these unprecedented times, the need of employers to monitor the health of their staff, and the need for staff to be as open as possible with their employers, has never been greater.
But what can you do to monitor the health of your staff?
Obtaining the medical history; diagnosis or monitoring day to day health to check for symptoms of covid-19, such as taking employees’ temperature at work; gives rise to a number of issues to consider, such as:
- Data protection.
- Health and safety.
An employer cannot require an employee, worker, or visitor to their premises to undergo a medical examination without consent.
For the purposes of checking for symptoms of covid-19, which might include taking the temperature of staff, this also would require the consent of the individual.
To proceed without consent could potentially be a repudiatory breach of contract in respect of employees, entitling them to claim constructive dismissal. In relation to other individuals, this could in theory constitute the criminal offence of assault.
However, on a practical level, if the nature of the employer’s business is such that it considers it would need to temporarily close or send employees and workers home during a pandemic unless it undertook such health checks, consent may not be an issue in the majority of cases.
On a personal level, employees and workers may be reassured that the employer is taking steps to protect their health in the workplace, as long as testing is carried out on all staff and visitors without exceptions. It is therefore unlikely that consent for testing relating to covid-19 symptoms would be refused.
Obtaining health information about an individual is special category personal data and an employer (or data controller) can only process such data on certain grounds under the General Data Protection Regulation.
One of the permitted grounds for processing special category data is for health purposes.
The health exemption enables occupational health professionals to process data relating to health where processing is necessary for the purposes of preventative or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis or management and treatment. This exception will only apply to occupational health professionals who are subject to confidentiality obligations, such as those issued by the General Medical Council regulating the conduct of medical practitioners.
This may mean that provided an employer uses an occupational health professional to conduct the temperature checks and obtains explicit consent, it may be possible to conduct these temperature checks lawfully.
The processing must be carried out on the basis of EU law or member state law or pursuant to a contract with a health professional so that the data is processed in conditions of confidentiality, and when any processing is carried out by an employer, the employer must have an appropriate policy document in place and observe the additional safeguards. An employer has an appropriate policy in place if it has a document which both explains the employer’s procedures for complying with the data protection principles in connection with the processing of the data and explains the employer’s policies as regards the retention and erasure of personal data processed, giving an indication of how long such personal data is likely to be retained.
In this current pandemic, the processing of this data may also be permitted for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health. Again, it must be carried out on the basis of EU or member state law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy. The Data Protection Act 2018 provides that processing will meet the requirement of being authorised by, or based in, UK law if it is necessary for reasons of public interest in the area of public health; and it is carried out by or under the responsibility of a health professional; or by another person who in the circumstances owes a duty of confidentiality under an enactment or rule of law.
There is also likely to be permission for processing the data under the permitted ground of substantial public interest, which are listed in Part 2 of Schedule 1 to the Data Protection Act 2018. If relying on any of these conditions, the employer must (unless otherwise stated) when the processing is carried out have an appropriate policy document in place which complies with additional safeguards.
Unfortunately for employers, a generic form of consent in employment contracts relating to health checks is unlikely to be sufficient for data protection purposes in respect of taking temperatures.
Health and safety
Employers have an ongoing health and safety duty to employees, and many are wondering what measures they could and should be taking to minimise risk, such as taking the temperature of staff, making staff wear masks or requiring them to stay indoors at lunch time.
It may be arguable that all of these, and particularly carrying out temperature checks may be part of a series of measures which assists employers to protect the health and safety of their employees in a pandemic.
However, perhaps surprisingly, in relation to the coronavirus disease, taking temperatures is not a measure currently recommended by the government; ACAS or the World Health Organisation, in how to manage the covid-19 virus and minimise the risks at work. An employer should first focus on ensuring that the advice recommended by those sources is followed.
Government guidance on limiting the spread of COVID-19 in the workplace seems to be limited at present to advice on frequent handwashing to staff and customers and to cleaning and disinfecting objects and surfaces; and the measures set out in the Workplace Social Distancing Guidance which does not extend to wearing a mask.
The WHO guidance: Getting your workplace ready for COVID-19 suggests providing face masks but does not go so far as to suggest requiring that they be worn.
The Public Health England: COVID-19: stay at home guidance for households with possible coronavirus (COVID-19) infection suggests that “…We do not recommend the use of face masks as an effective means of preventing the spread of infection. Face masks play an important role in clinical settings, such as hospitals, but there’s very little evidence of benefit from their use outside of these settings…”
In light of current advice, it appears that an employer may find it difficult to support a compulsory wearing of face masks unless it considers particular circumstances support its position. That said, if an employer offers them it may find that employees will agree to wear them.
As regards prohibiting employees from going out during their lunch hour, the employer would need to consider whether, in all the circumstances, this would be a reasonable instruction to employees. Factors to take in account might include provision the employer would make for employees during the lunch hour (including access to food if employees usually go out to buy their lunch if bringing in lunch or collecting it on the way to the office is impractical), whether the employees’ commuting time and working hours mean that it is important for them to leave the office to run errands/do shopping (to the extent that those things might be reasonably necessary given the current instructions for social distancing) and the importance of employees taking a break from work (they may need to take time at lunch to take a walk/exercise if that is possible).
The guidance is however being continually updated, so it is necessary to regularly check for the latest developments.
Potential discrimination issues
If an employer decides to carry out any form of medical testing on employees, workers, or visitors during a pandemic, or any other measure it should ensure that it is applied consistently to all.
Only testing certain groups who are perceived to be at a higher risk of having contracted a virus could potentially lead to discrimination claims.
If an employee refuses to comply, what action can be taken?
There is no clear answer to this, and it will always depend on the circumstances.
For example, the answer would very much depend on the circumstances, including:
- Whether the employee is under a contractual obligation to take the test (or other practical step such as undergoing a medical examination).
- Whether it was reasonable for the employer to request that the employee take a test or other medical examination in the particular circumstances.
- The manner in which the testing or examination is carried out including compliance with data protection and discrimination law.
- The reason for the employee’s refusal.
Ultimately, this may raise the question of whether disciplinary action should be taken.
Employers must however remember that even during this unprecedented time, employment law and employee rights remain unaffected. Therefore, employers must still follow a fair disciplinary process or risk any sanction being an unreasonable response and challenged as being unfair.
Employer should also be sympathetic and acknowledge that people are currently very anxious – about their health, jobs and future. Being asked to undertake tests at work is likely to be quite intimidating for most, and the results extremely worrying for them. Unreasonable testing or requirements on checking health may cause damage to your reputation and may make some staff leave – and retention of your key staff at this time is essential. If anxiety prevents staff from attending work, it is possible that they may be regarded as on sick leave, and where an employee suffers from severe anxiety, this could amount to a disability under the Equality Act 2010.
What should an employer do where an employee who is at work starts displaying symptoms?
The government guidance from Public Health England, BEIS and the Acas guidance advise that if anyone becomes unwell with a new, continuous cough or a high temperature in the business or workplace they should be sent home and advised to follow the Stay at home guidance.
The guidance advises that, if they need clinical advice, the affected employee should go online to NHS 111 or call NHS 111, or 999 should be called if it is an emergency (if the employee is continuously breathless, seriously ill or injured or their life is at risk).
Both the government guidance and the Acas guidance are updated frequently and employers would be advised to check the online versions for the latest advice.
Fundamentally, how you treat staff at this time will be remembered for a long time and so what steps an employer takes to monitor the health of their staff, they should be empathetic, transparent and kind.
This article was written and researched by Albert Bargery, Solicitor at our Isle of Wight Office. Albert advises employers and employees on the Isle of Wight and throughout the UK.
You can contact Albert by email:firstname.lastname@example.org
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