The coronavirus has now gripped the Netherlands for more than two weeks. Companies and organizations inside and outside the vital sectors must continually move quickly to identify and deal with the impact of the virus. Are employers allowed to collect data on the spread of the virus to monitor business continuity? May temperature testing be conducted in the workplace? Unfortunately, the response of the Personal Data Authority ("AP") to the coronavirus leaves much to be desired in both speed and substance. This leads to confusion and uncertainty. Take as an example the question of whether employees' temperatures may be tested. The AP previously adamantly said "no," on Monday, March 23, the AP said "yes, in the healthcare sector," but by now this is no longer reflected on the website. The question now is whether this is a deliberate action by the AP. Should temperature testing not be allowed (after all)? Testing for temperature should be tolerated in "the vital sectors.
Two weeks ago, the AP's initial notice on employee testing was harsh: As an employer, you should not normally sit in a doctor's chair by drawing conclusions about the health of individual employees. For example [...] by recording their temperature. Unfortunately, we currently live not in the times of "normally," but in times of the coronavirus. Employers have a concern for the health and safety of all their employees in the workplace. At this particular time, this duty of care requires them to prevent, whenever possible, employees from being infected by a co-worker who is carrying the virus. For this reason, it may be desirable to test temperatures at entry and not allow employees with a fever to enter the workplace. This is not so much about recording temperature, as "measuring is knowing" and sufficient to send a person home.
Last Monday, March 23, the AP appeared to have revised its position: in the healthcare sector, temperature testing is allowed in the workplace. However, four days later this appeared to have disappeared from the AP's website.
This raises questions about the AP's position. Why did the healthcare exception disappear from the website? Is this a case of moving insight? A changed position of the AP? Or was this crucial information accidentally lost in the process of creating the new Corona file on the website? In these hectic times when everyone is starving for information, the AP is also expected to draw a clear line. Especially since the AP has fining authority and very recently caused a lot of commotion by imposing a very high fine on the Royal Dutch Tennis Association (KNLTB), in which the (strongly criticized) standards explanation was made public by the AP shortly before the fine decision. The example illustrates that there is evidently reason to keep a close eye on (changes in) the norm explanation by the AP.
As for temperature testing in the workplace, the broadening of the AP's position was welcomed. Still, it surprised that in the AP's view, testing can (apparently) only be allowed in the healthcare sector. After all, the government has communicated what are "vital sectors" and professions that we now need to keep society running. A further broadening of the AP's position to include those sectors and professions is therefore logical. For example, employees must be clearly informed in advance about the new access policy to the workplace because of the coronavirus; temperatures of employees may be tested by a designated employee (this does not have to be the company doctor); a clear maximum temperature is determined and anyone found to have this temperature may not enter the workplace and is asked to go home; the results of the test are not recorded/saved (but of course the fact that an employee is not available for work).
It may be difficult for the AP, precisely because it involves the processing of health data (a special data to which, in principle, the processing ban applies with limited exceptions) in the workplace (where the employee is in a vulnerable position due to the relationship of authority) and there are obvious privacy risks, to loosen the reins and make this clear. However, in times of crisis, flexibility and creativity are expected of everyone. Also from the supervisor.
More articles by Kennedy Van der Laan
This article can also be found in the files AVG, Coronavirus and Privacy in the workplace
