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Temperature checks: the Employment Ministry’s new position

22/05/2020

 

The issue of whether an employer is allowed to check its employees’ temperature is controversial and has been much debated. The Employment Ministry has recently changed its position on this issue. Employers who wish to carry out temperature checks during the Covid-19 pandemic should, by analogy with the procedure provided for in Collective Labour Agreement n° 100 on the conduct of alcohol and drug tests in the company, include the decision to introduce such temperature checks, as well as its modalities of implementation, in the work rules.

Moreover, this issue continues to raise many questions: Who can carry out such a temperature check? Can the employer deny an employee who tests 'positive' access to the company premises? What if the employee refuses to have his/her temperature checked? Are such temperature checks an effective tool for employers? More detail about this issue is set out below.

Can the employer check the temperature of its employees during the Covid-19 pandemic?

Each employer has an obligation to ensure its employees’ health and safety and to take measures to prevent and reduce risks as part of its well-being and prevention policy.

Since an elevated body temperature may give rise to a suspicion that an employee is infected with the coronavirus, an employer could take a preventive measure of checking its employees' body temperatures before they enter the company premises.

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

  • The Health & Safety Committee should be informed and consulted about this measure;
  • Employees should be provided with clear information on the measure’s concrete, practical implementation;
  • The temperature check should not be accompanied by any additional recording or processing of personal data (in which case, the GDPR would apply);
  • The measure may be applied only during the period of strict safety measures in the context of the coronavirus crisis;
  • The introduction of a temperature check does not affect the employer’s obligation to take the necessary health and safety measures (e.g. hygiene and social distancing).

Recently, however, the Employment Ministry’s website has updated, i.e. reinforced, the Ministry’s position on temperature checks.

As a general principle, the Employment Ministry now states that an employer may not measure its employees’ temperature, just as it may not require an employee to submit a certificate from his/her doctor that he/she is fit to work.

However, the Employment Ministry states that during the Covid-19 crisis period, temperature checks are allowed provided they are carried out within a strict framework that is set out in the work rules.

The Employment Ministry now refers to the procedure set out in CLA n°100 for taking alcohol or drug tests. It states that a similar procedure should be followed for temperature checks, namely that the decision to introduce such temperature measurements, as well as all the applicable modalities, must be included in the work rules, which will thus have to be amended following the usual procedure.

In accordance with CLA n°100, the following elements must be included in the work rules:

  • The nature of the tests that can be taken (in this case, the temperature measurement in the context of the coronavirus pandemic);
  • The target group(s) 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 time(s) at which testing can take place; and
  • The possible consequences of a positive test result.

Before applying the procedure for amending the work rules, the Health & Safety Committee (or, in its absence, the trade union delegation, or in its absence, the employees themselves), will also have to be informed and consulted about the possibility of introducing such temperature checks in the company.

Finally, in accordance with CLA n°100, the employer must inform the employees and evaluate the measures regularly.

Who can conduct such temperature checks?

Taking the body temperature is considered as collecting information about the state of health, which is equivalent to a medical act and so must be conducted by a physician, such as the occupational physician.

Another option is to let the employees make the temperature check themselves.

Can the employer deny an employee, who tests ‘positive’, access to the company’s premises?

In accordance with the Employment Ministry’s previous advice, in order to protect other employees, an employer could decide that an employee with a body temperature of more than 37.5°C may not enter the company premises and must contact his/her attending physician in order to have his/her health checked.

What if an employee refuses to have his/her temperature checked?

The temperature check can only happen on a voluntary basis. If an employee refuses to have his/her temperature checked, then the employer cannot, in principle, refuse him/her access to the building. 

This seems even more the case since the Employment Ministry refers to CLA n°100 and this CLA stipulates in its Article 4 that the (alcohol or drug) test, and by analogy the temperature check, may only be taken if the person concerned has agreed to this check.

Are such temperature checks useful and reliable?

When considering introducing temperature checks, an employer should consider whether such checks are useful.

From a medical point of view, a temperature check is not a conclusive way to detect the coronavirus and the test can give a false sense of security as:

  • fever can be masked with antipyretics/fever reducers such as aspirin;
  • even people without a fever can transmit the virus, so there is a risk of ‘false negatives’;
  • not everyone with a fever has the coronavirus. The fever can also have a different origin (a cold, the flu), so there is also a risk of ‘false positives’.

Conclusion and recommendation

If you believe that a temperature check when the employees enter the company, despite a risk of ‘false positives’ and ‘false negatives’, could still be useful, then we advise you to follow the following 'rules of thumb':

  • Include this measure in your prevention policy and inform and consult with your Health & Safety Committee (or, if you do not have a Health & Safety Committee, with the trade union delegation or the employees);
  • Include this measure as well as all the modalities of its implementation in your work rules via the normal procedure of amending the work rules;
  • Just check but do not record or process data (in which case the GDPR will not apply);
  • Inform the employees about the test and its practical implementation;
  • Have the check carried out by the occupational physician or by the employees themselves;
  • Make sure that the temperature check remains only an 'additional' measure and that your company mainly focuses on other prevention and health measures such as hygiene, social distancing, asking workers who show symptoms to contact their doctor, etc.
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