Do we have a legal right to take employee’s temperatures as part of a COVID secure strategy?

Do we have a legal right to take employee’s temperatures as part of a COVID secure strategy?

July 5, 2020

Should we be at work?

The Government’s current advice does not address checking the temperatures of staff before allowing them to enter or remain at their work premises. The official advice is still that people should continue to stay at home as much as possible. People who can work from home should continue to do so. People who can’t work from home (for instance, those working in construction or manufacturing), are being ‘actively encouraged to go to work’ but to avoid travelling there by public transport if at all possible.

A COVID secure workplace

The Government has issued specific guidance covering different sectors but as this detailed information does not address workplace temperature testing, the decision is mostly left to employers.

It’s crucial that employers remember that the physical, emotional and mental wellbeing of the workforce remains the key principle of managing any return to the workplace. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default should be to work from home. Employers should keep checking the government website for the latest information.

Deciding to test

In the absence of a Government requirement for temperature testing requirement, employers can decide not to undertake testing. Displaying a high temperature is one of the main symptoms (along with a new continuous cough and loss of smell or taste) of a COVID-19 infection but equally someone who is infected may show no symptoms at all.

However, employers may decide to follow the lead of other countries and try temperature testing to discharge their health and safety duties. Employers may decide other employees need reassurance that the workplace is safe, and Health & Safety may suggest temperature testing during Coronavirus risk assessments.

Voluntary temperature testing

For businesses that remain open or reopen and decide to test, the legal position concerning taking employees’ temperatures for Coronavirus is similar to the medical testing of employees for other reasons.

The easiest way for employers to conduct such medical tests would be on a voluntary basis. The contractual terms agreed in the employment contract or accompanying policies may also be of assistance to employers who want to check employees’ temperatures at work. However few employers have more than the right to refer the employee to an independent medical adviser at the employer’s expense. Some may have an expressed clause giving the employer the specific right to test for drugs and/or alcohol.

As testing would be conducted by the employer, we feel this would need a contractual policy in place or specific reference to the right to test the employee in the employment contract. Its something we are discussing here at Redwing to see whether there is any mileage in adding this to our employment contracts in the future. Everyone is in agreement afterall, that COVID 19 will be with us for a long, long time.

Communicating what you are aiming to achieve

Employers who wish to monitor employees’ temperatures should openly explain the current Coronavirus advice, their concerns and risk management strategy. Employees may then choose to have their temperatures taken based on this advice.

If employees do not agree and there is no contractual provision or agreed policy covering the situation then taking an employee’s temperature is unlawful. Certainly, an employer should not try to force employees into having their temperature taken, or issue threats of suspensions, disciplinary or dismissal processes.

Implied Contractual provisions

A possible course of action for employers who wish to insist on testing (without an express clause) would be reliance on a possible implied contractual term that employees should comply with a reasonable request from their employer.

Firstly, employers do have a duty to protect the safety of their workplace under the Health and Safety at Work Act which includes ensuring that employees are not infecting others with the Coronavirus.

On the other hand, from a practical point of view, an employee may be infected with Coronavirus without yet having a raised temperature. Some businesses, such as public transport and healthcare, pose different safety risks where testing may be more justified.

Whether insisting on taking temperatures is reasonable (without an express clause) depends on a number of factors including the employee’s role, official health advice on precautionary measures at the time, the employee’s symptoms and the alternative causes of action, such as self-isolation, that are available.

If employees agree to have their temperature checked and have a high temperature, an employer may reasonably require them to go home as the temperature suggests an illness.

Data protection

Although the Government guidance does not address temperature testing, the Information Commissioner’s Office (ICO) has issued guidance which addresses the issue. The critical issue remains whether the tests and keeping any resulting records are necessary and proportionate.

If employers process information that relates to an employee, they need to comply with the GDPR and the Data Protection Act 2018 (similarly to drug testing). Any data that an employer has about an employee’s temperature, symptoms, where the employee has been and whether he or she has tested positive for Coronavirus is health data, and is referred to as ‘special category data’ under data protection law. Additional requirements apply to ensure the data is processed fairly and lawfully.

Under these circumstances, it is likely that an employer will be required to have a Testing Policy covering the processing to ensure compliance with key data protection principles including transparency, data minimisation and security requirements.

Employers may  be entitled to process such employee information on the basis of the employer’s health and safety duties. This is provided that it can be shown that temperature information is necessary to protect the health, safety and welfare of employees. Only necessary data should be kept – don’t collect personal data that you don’t need. Employers should consider and document the risk to employees and any alternatives to obtaining and processing the data that have been considered.

The health and safety context, such as decisions relating to office closures or disinfecting the workplace will also be relevant to justify the processing. (See paragraph 1, Schedule 1 Part 1 of the UK Data Protection Act 2018 and Article 9(2)(b) GDPR).

If you need any assistance with any aspect of managing the Coronavirus pandemic in your small business, call us on 01527 306066..

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