Temperature Testing in the Workplace

The legal issues surrounding taking employees’ temperatures at work are complex, and require a careful handling of the data involved under the GDPR. The government has published advice for making workplaces as safe as possible, although those who can work from home are still encouraged to do so. Those who can’t work from home are being encouraged to go to work, but to avoid using public transport if possible. However, the advice does not address general workplace testing, which is left to the discretion of the employer.

Some workers are eligible for NHS drive-through testing. Social care workers, residents in care homes, NHS workers and patients should be tested, regardless of whether they display symptoms. An employee whose work cannot be done from home is also eligible for such testing, making workplace testing non-essential, although an employer may still choose to implement workplace COVID-19 testing (See our article on ‘Lateral Flow Testing in the Workplace’ for further information on this). However, an employer may decide to adopt general temperature testing in the workplace as part of their COVID-19 risk assessments, and to aid a return to the workplace. In managing such a return, employers must communicate openly with employees to understand their concerns, and to prioritise the physical, emotional and mental wellbeing of their workforce.

There is currently no government requirement for temperature testing in the workplace, and employers may decide not to undertake testing. Although displaying a high temperature is one of the main symptoms of COVID-19, a high temperature could equally signal something completely different, or the infected person may have no symptoms at all. However, employers may decide that undertaking temperature testing is beneficial as it helps them discharge their health and safety duties, or reassures the workforce in their return to work. Decisions should be made prioritising the wellbeing of the workforce.

For employers who decide to undertake temperature testing, the legal position is similar to medical testing of employees for other reasons. The easiest way for employers to conduct such tests, including temperature tests, is on a voluntary basis. If employees do not agree to have their temperature taken and there is no contractual provision of agreed policy covering the situation, then taking their temperature is unlawful. It is advisable for employers who wish to implement temperature testing to openly explain to employees the current COVID-19 advice, their concerns, risk management strategy, and where temperature testing fits within this. An employer should not try to force employees into having their temperature taken, or issue threats of suspensions, disciplinary, or dismissal processes.

If an employer wishes to implement workplace temperature testing, the contractual terms agreed in the employment contact or accompanying policies may be of assistance. Some employment contracts have clauses in them imposing an obligation on employees to undergo various medical tests. Depending on the wording of the clause, taking a temperature may be covered by these clauses. If an employee refuses to comply with a pre-existing clause, then they may be in breach of contract and a refusal may provide grounds for a disciplinary or dismissal procedure, although this is generally inadvisable. 

Many contracts of employment do not contain such a contractual term, meaning that an employer cannot impose compulsory temperature testing. Employers could argue that they have a duty to protect the safety of the workplace under the Health and Safety at Work Act, which includes ensuring that employees are not infecting others with COVID-19. However, a counterargument may be that temperature testing does not ensure this, as an individual may not display a high temperature though infected. Some industries, such as healthcare or public transport, pose different risks, and testing may be more justified in these areas.

The question as to whether taking an employee’s temperature is reasonable depends on factors such as the employee’s role, current health advice, the employee’s symptoms, and whether there are alternative courses of action (such as self-isolation) available. It could be argued that employers breach their implied duty of mutual trust and confidence to other employees if they do not request an employee take a test when they believe it to be necessary. However, rather than force a reluctant employee into temperature or other testing, it is preferable to suggest the employee work from home or self-isolate.

If an employee agrees to have their temperature measured and presents a high temperature, an employer may reasonably require them to go home as the temperature suggests an illness, if not specifically COVID-19.

Data Protection:

The Information Commissioner’s Office has issued guidance which addresses the issue of widespread temperature testing. The most critical issue is whether the test and the keeping of any resulting records are necessary and proportionate. Employers can ask employees to notify any COVID-19 diagnosis, as the processing of such health data is justified under the GDPR as being necessary to comply with employment and social protection law or for reasons of public interest in health.

If, when implementing workplace temperature testing, employers process any information which relates to an employee, GDPR and the Data Protection Act 2018 need to be complied with. Data about an employee’s temperature, symptoms, where the employee has been, or whether (s)he has tested positive for COVID-19 is classed as health data, and is referred to as ‘special category data’ under data protection law. Additional requirements apply to ensure that the data is processed legally and fairly, and under these circumstances it is likely that an employer will be required to have a policy document covering the processing to ensure compliance with key data protection principles (such as transparency, data minimisation, and security requirements). A data protection policy, among many other customised documents, is available on our system, In-House HR. 

Employers may be entitled to process such information on the basis of their health and safety duties, although this is provided that it can be shown that temperature information is necessary to protect employees’ health and safety, and welfare. Only necessary data should be collected and kept, and employers should consider and document any risks to employees, and any alternatives to obtaining and processing the data should have been considered. The health and safety context, such as decisions relating to office closures or disinfecting the workplace would also be relevant to justify the processing.