The big-picture information about Coronavirus being issued by the Government at present is all well and good, but it does not (in fairness, cannot) address the multitude of little spin-off questions arising for employers every day.
We held a webinar on this earlier this week, with members of our Employment, Commercial, Data and Health & Safety teams reflecting the sheer breath of the likely impact of Covid-19 on working society. A large number of questions were submitted through the webinar portal-thingy – in the first of a series, here are some of them and our suggested responses. However, Boris’ speech yesterday reminds us that this is not just a business problem but also a human one, and on a potentially colossal scale. The law was not designed for these unprecedented times and so it will occasionally struggle to provide a convincing answer. Let us do what we can.
- Are you allowed to disclose employees’ medical information to protect others, for example, by telling them that they may have been exposed through proximity to him?
Pragmatically the answer will always be that you would do that whether allowed to or not. That approach was officially green-lighted by the ICO yesterday, though only to the extent reasonably required for the protection of the health of the other employees and the public generally. The basic right to privacy in respect of one’s sensitive medical data is not in any sense waived by the ICO, but it has made it tolerably clear that it will not criticise an employer doing its best to protect other employees and potentially affected third parties even if it is a little over-zealous in doing so.
- I have been telephoned by an employee telling me that he has “a bit of a cough” and asking if he should come into work. How should I respond?
This is an unfair question to ask you. He can see the latest Government guidance on self-isolation as easily as you can, and you are not in a position either physically or medically to verify the level or nature of his symptoms. The only proper course is to put the decision back to him to make in the light of the official guidance. Either he is caught by it or he is not, but you can’t know one way or the other.
There is some inevitable scope for abuse of this by those so inclined – having “a bit of a cough” is hard to evidence, especially when contact with doctors is being limited, but also hard to disprove. Being told by your employer that you should not come in is akin to being suspended and so would almost automatically be paid. However, making that decision yourself could lead to later concerns on the part of your employer that you were not really ill enough (or at all) and so should not be paid. The Government has today introduced the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations which confirm that SSP will be available for those self-isolating in line with official guidance (and so not for those who take it upon themselves to do so without satisfying those conditions). Employers are likely to take the same view in relation to company sick pay over and above SSP.
- Can we do temperature checks on our employees?
Subject to not assaulting them in the process (i.e. with their consent), yes. The more important question arising from this is what you do with the medical data you obtain. A “normal” temperature reading is of no precautionary value and so should be discarded immediately – only a “fever” result should be retained. Despite the new ICO guidance referred to above, you should still treat that information with proper discretion. You send that employee home, notify senior management/HR/his immediate colleagues and disinfect surfaces he is particularly likely to have touched in the last 72 hours. However, you do not overreact or broadcast his identity to other employees or third-parties with whom he has not been in close contact in the last week or so.
Stay tuned for some more questions from our webinar coming soon.