The problem of measuring the temperature of employees is still unresolved
Employers are still waiting for clear guidance on the health surveillance of workers before they are admitted to work, in particular through temperature surveillance. The Senate’s bill allowing employers to demand information from employees about their health is stuck in the Sejm.
The position on the possibility of examining employees temperature was taken by the Office for the Protection of Personal Data, indicating that the basis for processing such personal data would be Article 9 § 2 lit. i the act GDPR, which allows for the processing of so-called „sensitive personal data” when necessary for reasons of public health interest, such as protection against serious cross-border threats to health, on the basis of Union or national law.
The Authority takes the view that on the basis of art. 17 COVID-19 Special Act, the Chief Sanitary Inspector (GIS) has the power to introduce solutions for employers in this area, also in the form of decisions to measure temperature in the workplace.
Unfortunately, so far GIS has not presented any specific solutions for employers. So far, the GIS has published guidelines for measuring the temperature of employees only for agricultural producers who employ foreigners for seasonal work. However, their content raises many objections.
According to the guidelines, the host is required to measure the employees, preferably before starting work, at least once a day. A temperature above 37¢ C entitles the employee to be removed from work.
Interestingly, the guidelines require the employee to obtain approval for temperature measurement. However, basing the processing of workers’ health data on their consent on the basis of their consent raises serious doubts, because the voluntariness of the employer-employee relationship may be illusory. Moreover, according to Article 221b of the Labour Code, the consent of the person applying for employment or the employee may be the basis for the processing of „sensitive personal data”, including the state of health, by the employer only if the transfer of these personal data is at the initiative of the person applying for employment or the employee.
Furthermore, the guidelines do not specify what protective measures to take in the case of workers who would exercise their right not to be examined, in particular whether they may be admitted to work. The guidelines also do not apply to measuring the temperature of Polish workers, who may also be employed on the same farm.
The UODO itself expressed its strong opposition to obtaining the consent of employees for temperature measurement by the employer in its Communication of May 5, 2020, indicating that: „the basis legalising the processing of health data in the employment sector, and therefore in the employer-employee relationship and in the relationship with the public entity, cannot be based on Art. 9 § 2 lit. a GDPR, namely the consent of the person concerned„. However, so far he has not commented on the content of the GIS guidelines.
Employers must therefore wait for more specific solutions for measuring the temperature of workers. In the meantime, particular care must be taken when implementing arrangements for the health surveillance of workers. If an employer decides to introduce temperature measurement in the absence of a GIS decision, he should refrain from obtaining the workers consent and seek the basis for such action in Article 9 § 2 b i h GDPR. Employees should receive comprehensive information on the actions taken. It is also worth considering a control system that will not process data on the health of employees – e.g. control with a non-contact thermometer without saving the measurements.