Some employers might be considering taking steps to assess the health of their employees, for example through temperature checks. This involves consideration of complex medical issues concerning the ability to detect who is carrying the virus based on such information. It is hoped that the Government will further update guidance about what is effective and required. This is important not just for employee safety, but also because it is a critical question to address when, inevitably, the employer will be gathering health related data about its employees.

What additional measures are required in relation to employee privacy if health checks are carried out?

Whilst we cannot provide detailed advice in this area, and we recommend that you seek legal advice, we do understand that a Data Privacy Impact Assessment (DPIA) will need to be carried out before health checks begin. The starting point is to ask what the basis for gathering and using this health data is, remembering that in an employment context employees are generally considered to be incapable of giving valid consent. Usefully, GDPR and DPIA allow use of this data on other grounds provided that it can be shown that this is necessary. This is why very clear guidance from Government would be helpful in demonstrating this necessity – it will provide employers with the basis to say that what they are doing is justified. The DPIA also requires the employer to have an appropriate policy document in place covering this, setting out how the employer complies with the law. HR departments should have this already if they are processing special category data like health-related data for employment purposes, (including compliance with employment law obligations - like health and safety legislation), but it may need updating to deal specifically with COVID-19. However, this is not the end of the requirements to ensure compliance with data protection laws and regulations. The employer must explain very clearly to employees what it is doing with their data and why (this is called “transparency”). This goes hand-in-hand with the employer’s obligation to provide employees with specific information about risks to their health and safety, the measures which are introduced to prevent and protect against those risks and the employer’s safety procedures. The employer should also ensure the data is stored very securely and is only accessible by those who need to know, with consideration given to whether it could be partially anonymised. And the data should only be kept for as long as is strictly necessary for the purposes for which it was gathered. Employers should also be careful if they are using someone else to gather and store the data (perhaps a private provider of medical services). Appropriate data sharing contracts should be put in place with these organisations to address the same issues, eg security, access rights, retention, and limiting what can be done with the data.

It must be noted that Avison Young recommend employers seek their own legal advice as part of their return to work strategy.

Risk assessments

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Health and safety duties

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Well-being

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Home working

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