Member Article

The controversial issue of whether employers can check their employees' temperatures has been much debated. Both the Employment Ministry and the Data Protection Authority (DPA) have recently changed their positions in this respect. The Employment Ministry allows temperature checks, but only during the COVID-19 pandemic and provided that the decision to introduce such checks, as well as the method of implementation, is included in the company's work rules in line with the procedure provided for in Collective Labour Agreement Number 100 on the performance of alcohol and drug tests.

The DPA does not consider the mere reading of a person's temperature to be the processing of personal data to the extent that the temperature or other consequences of the measurement (eg, absence from work) are not recorded. Therefore, the EU General Data Protection Regulation (GDPR) does not apply.

If, on the other hand, any data is recorded – which, according to the DPA, will, for example, inevitably be the case to justify an employee being refused access to the workplace – this will count as the processing of health data. According to the DPA, in such a case and with the current state of Belgian law, there is no solid legal basis for the processing of such health data in this respect; thus, employers will not be allowed to record the measurement result or its consequences in a file.

Moreover, this issue continues to raise many questions, including as follows:

• Can employers check employees' temperatures during the COVID-19 pandemic?
• Who can conduct temperature checks?
• What happens if an employee refuses to have their temperature checked?
• Can an employee who tests positive be denied access to the workplace?
• Are temperature checks an effective tool for employers?
  
  

This article examines these questions.

FAQs

Can employers check employees' temperatures during the COVID-19 pandemic?
Employment Ministry's new position
Employers must ensure their employees' health and safety and take measures to prevent and reduce risks thereto as part of their wellbeing and prevention policies.

Since a high temperature may indicate that an employee has COVID-19, employers could take the preventive measure of checking their employees' temperatures before they enter the workplace.

Until recently, the Employment Ministry took the position that such temperature checks were permitted provided that:

• the company's health and safety committee was consulted about such measure;
• employees were provided with clear information on its concrete, practical implementation;
• temperature checks were not accompanied by any additional recording or processing of personal data (in which case, the GDPR would apply);
• the measure was applied only during the period of strict safety measures in the context of the COVID-19 crisis; and
• the introduction of temperature checks did not affect employers' obligation to take necessary health and safety measures (eg, maintaining good hygiene and social distancing).
  
  

However, the Employment Ministry's website has been updated, clarifying and reinforcing the ministry's position on temperature checks.

As a general principle, the Employment Ministry now states that employers cannot measure their employees' temperatures, just as they may not require an employee to submit a certificate from their doctor stating that they are fit to work.

However, the Employment Ministry also states that temperature checks are permitted during the COVID-19 crisis, provided that they are carried out within a strict framework which must be set out in the company's work rules.

In this respect, the Employment Ministry now indicates that a similar procedure to that set out in Collective Labour Agreement Number 100 for performing alcohol or drug tests should be followed. Thus, the decision to introduce temperature checks, as well as the method for doing so, must be included in the company's work rules, which must be amended in accordance with the usual procedure.

Under Collective Labour Agreement Number 100, the following elements must be included in the company's work rules:

• the nature of the tests that can be taken (in this case, measuring temperatures in the context of the COVID-19 pandemic);
• the target group of employees who can be subjected to the test;
• the procedures to be followed when conducting the test;
• the persons responsible for conducting the test;
• the times at which testing can take place; and
• the possible consequences of a positive test result.
  
  

Before a company amends its work rules, its health and safety committee (or, in the absence of such a committee, the trade union delegation or, in the absence of such delegation, the employees themselves) must be consulted about the possible introduction of temperature checks and the company must regularly evaluate this measure.

DPA's new position
The DPA has also clarified its position regarding the processing of personal data. Previously, it stated only that a mere temperature reading would not be considered as the processing of personal data. The GDPR would not then apply and temperature checks would be possible if the conditions set by the Employment Ministry were met.

In a recent opinion, the DPA has also clarified its position in the event of any additional recording of data, which in its view will happen often and quickly, for example to justify an employee being refused access to the workplace. However, in such a case, the GDPR will apply and, in the DPA's view, in the current context of Belgian law, there will be no sound legal basis to process such health data. Thus, according to the DPA, employers are neither allowed to record the temperature check measurement result in a file, nor the consequences of this measurement result (eg, absence from work), which drastically reduces the practical usefulness of such tests.

Moreover, according to the DPA, employee temperature checks using heat cameras or other automated systems are out of the question because the measurement in itself involves the processing of health data.

Who can conduct temperature checks?
Taking a person's temperature constitutes collecting information about their health, which is equivalent to a medical act and must therefore be conducted by a physician (eg, the occupational physician).

Employees can also take their own temperature.

What happens if an employee refuses to have their temperature checked?
Temperature checks must be voluntary. If an employee refuses to have their temperature checked, their employer cannot, in principle, deny them access to the workplace.

This is supported by the Employment Ministry's reference to Collective Labour Agreement Number 100, Article 4 of which stipulates that an alcohol or drug test, and therefore a temperature check, may be taken only if the person concerned has agreed thereto.

Can an employee who tests positive be denied access to the workplace?
In accordance with the Employment Ministry's previous advice, in order to protect other employees, employers could prohibit an employee with a temperature higher than 37.5 degrees Celsius from entering the workplace.

However, as employers will have to be able to justify the refusal of access in the event that such an employee contests that decision, this will necessarily require the processing of the employee's temperature data, which is considered to be unlawful by the DPA.

Therefore, employers should not register anything but ask employees who test positive to return home on a voluntary basis and contact their treating physician, who will then issue them with a medical certificate confirming their absence.

Are temperature checks useful and reliable?
When considering introducing temperature checks, employers should consider whether such checks are useful.

From a medical point of view, temperature checks are not a conclusive way to detect COVID-19 and can give a false sense of security because:

• a fever can be masked with antipyretics and fever reducers (eg, aspirin);
• people without a fever can transmit the virus, so there is a risk of false negatives; and
• not everyone with a fever has COVID-19, so there is a risk of false positives (eg, a fever can stem from a cold or the flu).
  
  

Comment

If employers conclude that checking employees' temperatures when they enter the workplace – despite the risk of false positives and negatives and the limitations on the basis of the data protection rules – could still be useful, they should consider:

• including this measure in their prevention policy and consulting with their health and safety committee (or, if there is no committee, the trade union delegation or employees);
• including this measure and the method of its implementation in their work rules in accordance with the normal procedure;
• checking employees' temperatures only but not recording or processing any data (in which case the GDPR will not apply);
• informing employees about the measure and its practical implementation;
• having the checks carried out by the occupational physician or the employees themselves; and
• ensuring that it is an a   dditional measure and that the company focuses mainly on other prevention and health measures (eg, ensuring good hygiene and social distancing and asking workers who show symptoms to contact their doctor).
  
  

For further information on this topic please contact Esther Soetens at ALTIUS by telephone (+32 2 426 1414) or email ([email protected]). The ALTIUS website can be accessed at www.altius.com.