To maximise protection from Covid outbreaks, new precautionary measures will emerge as we return to the workplace – but these will require both remote and onsite workers to agree to submit to greater surveillance and disclosure of sensitive data.
Firstly, having temperature monitoring technology for employees and visitors entering the workplace is likely to become common practice. Those displaying higher temperatures, but otherwise asymptomatic will be prevented from entering and asked to work from home. Workplaces which cannot ensure consistent social distancing, have heightened risk and transmission factors such as lack of natural light and colder temperatures, or involve close contact with vulnerable persons, may also implement regular Covid-19 antigen testing for employees. If/when an effective Covid-19 vaccine emerges, a third new norm will be vaccination as condition for attending work for particularly high-risk sectors.
In implementing these three measures, employers need to be aware of the employment and data protection regulations concerning the collection, storage and use of medical and personal information. Forcing an employee to the testing (temperature or antigen) against their will, where there is no contractual provision or agreed policy in place for medical testing requirements, will be unlawful. Employers should also consider preparing Covid-security policies and establish clear risk management protocols on how to discreetly and sensitively manage employees displaying high temperatures on arrival or who test positive, including steps to protect their privacy as far as possible.
As working from home becomes a core and permanent feature for many businesses, it is likely a fourth new measure will be more invasive measurement and monitoring of productivity and performance of employees whilst working from home. One example is the use of facial recognition software to check the times spent by professionals sat at their home office, as has recently been introduced by PwC (who state that this measure is required for legal compliance monitoring).
Such proposals will controversially extend the reach and eyes of employers into employees’ homes and conflict with their privacy. Employers must again use any monitoring tech for a clear legal purpose, transparently, and, in consultation with employees, should undertake risk assessments and develop home working policies which identify the extent and purpose of monitoring. Employers will need to find ways in which monitoring can be done proportionately, balancing the individuals’ human rights to privacy with the company’s legitimate interests.
A possible irony of increased working from home is that employers may seek to increase control of employees’ movements and activities outside of work, particularly if they hold business critical roles, or would present a high risk of transmitting the virus to colleagues or vulnerable groups.
We anticipate a fifth new measure could be future contracts of employment requiring employees to reasonably avoid activities outside working hours with high risk of exposure to the virus, such as attending crowds indoors once these environments resume. Again, whether this would be a lawful and reasonable instruction of an employer will be a question of proportionality – balancing the restriction on an employee’s private life with the health risks posed to others by them undertaking high risk activities.
Where protection measures such as temperature monitoring and Covid testing are available, it is more likely that restrictions on persons’ private activities are disproportionate for most employees. However, the current imperfections of Covid testing mean that there may be legal justification for these instructions for roles which have specific direct and close contact with the most vulnerable categories of persons, such as health care positions, or if the employee’s working environment poses a particularly high risk of widespread transmission and damaging closure to the employer. In this scenario, the employer may be able to legitimately take disciplinary action for any willful breach by the employee of these restrictions.