As people begin to return to the workplace, employers such as Ford, Amazon, and PwC are introducing new ways to monitor the fitness of their staff to work. Different measures include using thermal scanners to check for temperatures, phone apps which register the proximity between staff, and wristbands to monitor an employee’s physical location on site.
For smaller businesses, more practical measures to identify risks may include asking for self-declarations of good health, staff questionnaires, and/or antibody tests.
Whilst these measures might alleviate some anxiety about health and safety, employers should also consider a number of legal issues. For example, it is questionable whether employers can force staff to comply with these measures, or whether employees can be subject to disciplinary action if they refuse. This is also likely to vary between industries; for example, monitoring fitness to work and undertaking (more intrusive) health checks is likely to be essential for medics and care workers, and therefore it could be considered unreasonable for such employees to refuse to comply. However, this may not be the case in an office context.
There are also data protection issues for employers to consider, since the measures would involve holding personal data under GDPR. It is important to note that staff health information is a special category of personal data, and therefore can only be processed on certain grounds. Obtaining third party consent should also be considered.
Top tips for employers:
- Make sure you have legitimate reasons for collecting information about your staff. Whilst it may be reasonable to process this information (including health data) during a global pandemic to ensure staff health and safety in the workplace, you should not collect unnecessary or excessive information as this would breach GDPR.
- Talk to your staff about why you are monitoring their fitness to work, what information you will be collecting and how you will use it, how you will store and then dispose of it, and whether you will be sharing it with any third parties.
- Check your health and safety at work policies, and consider whether you need a new Pandemic Policy in place to set out specific rules about monitoring and collecting staff personal data during a pandemic.
- Review Government and World Health Organisation guidance in relation to measures to protect the health and safety in the workplace. The guidance is continually updated so you should regularly check their websites for the latest developments.
- Ensure that you apply any measures consistently to all your staff. If you only collect information or test certain groups of employees who are perceived to be at a higher risk of having contracted COVID-19, you could face a discrimination claim.
If you would like more details on this or a related topic, please contact the employment and HR team at Darwin Gray: www.darwingray.com/employment-hr