Many countries in Europe and Asia plan to ease the quarantine measures, but it becomes increasingly evident that the ‘post-quarantine’ world will bring a variety of new challenges to our societies. The UK’s National Health Service is currently designing an application which will allow citizens to report COVID-19 symptoms, order tests online and inform themselves about contacts with other potential virus carriers. Some airlines have recently begun carrying out blood tests on passengers at the airport prior to flights boarding.
Following lockdown lifts employees will return to their office working routines, especially in industries where remote working is (still) not a viable option. Companies will face the challenge to safeguard business continuity while balancing their safety, health and data privacy obligations as employers. This is particularly the case of companies with large offices set up in open office spaces which naturally carry a higher risk of disease spread.
Along with office restructuring and sanitary activities, a widely discussed measure that may be effective in the post-crisis situation is preventive monitoring through COVID-19 testing or symptom checks. While still considered as insufficiently reliable, ‘quick’ bloodless tests are currently developed by pharma companies and are likely to be available at large scale in the months to come.
Unlike other data privacy authorities, the Bulgarian Data Protection Commission has so far failed to come up with practical COVID-19 guidelines for employers. COVID-19 screening at the workplace is a legitimate practice in the USA and other jurisdictions, but may seem to be at odds with the data protection legal framework in Europe. The French CNIL recently noted that employers may not collect systematically information about possible COVID-19 symptoms of their employees and the French Ministry of Labour explicitly stated that employee testing is currently forbidden. Other jurisdictions such as Germany and Italy have adopted a similar approach.
That vigorous approach towards data privacy may be called into question by the common interest of employers and employees in maintaining a safe work environment. Information about employees’ illnesses preventing them from attending work is in any case disclosed to the employer for the purpose of sick leave. Further, as reminded by the European Data Protection Board, the GDPR does not preclude employers from processing health data (like conducting COVID-19 screening, provided that national law allows it (Art. 9.1.(i)).
Under the Healthy and Safe Working Conditions Act (HSWCA), Bulgarian employers have a general obligation to ensure safe and healthy work environment for employees in all ‘job-related’ circumstances. This is normally done with the help of occupational medicine service providers which must, among others, carry out periodic medical examinations of employees. Employees’ health dossiers maintained by such providers are not accessible to the employers. Thus, it seems that the required legislative framework is in place and allows for various approaches. However, absent clear legislative reference and/or confirmation by public authorities, employee screening remains a risky measure as it may be considered not strictly ‘job related’. COVID-19 screening of employees is not among the workplace measures recommended by the Bulgarian Health Ministry and WHO either.
On the other hand, the coronavirus has a very high transmission rate and many infected people don’t show symptoms for up to 14 days or at all. The general public benefit of allowing employers to test and determine if employees or visitors entering the workplace may have COVID-19 is apparent since an individual infected with the virus will pose a direct threat to the health of many others.
Further guidelines or legislative changes providing more clarity on this subject are of critical importance now with the upcoming ease of quarantine measures. After all, as opposed to the centralized location tracking and other similar government initiatives discussed worldwide, COVID-19 screening at the workplace (when conducted in compliance with data processing principles) seems to be in balance between the society’s interest in public health and safety and concerns for individual freedoms.
The information and opinions contained in this post are not intended to and do not constitute a legal advice under Bulgarian law or under the laws of any other jurisdiction and is provided for informational purposes only.