Employers must take the necessary measures to ensure a safe workplace.
The possibility to conduct temperature checks of employees at the entrance of the premises to minimize the risk of spreading the virus within the company has been controversial during several weeks. A common position has been eventually found by French Labour Ministry and Data Protection Authority.
Position of the French Labour Ministry
Systematic temperature checks at the entrance of the workplaces are not recommended by French Labour Authorities.
However, they consider that companies can, as part of safety measures aiming at providing a safe workplace, organize temperature checks of people entering their premises. This should be provided in the internal rules and regulations of the Company. This measure can be enforced without delay after a communication to the Works Council and to the Labour Inspector.
The temperature checks must be proportionate to the objective pursued and offer all necessary guarantees to the employees in terms of prior information, protection of their dignity, consequences on the access to the site and absence of conservation of the corresponding data. In this respect, these checks must be strictly limited to temperature checks at the entrance of a site by means of a thermometer, without any trace being kept, or any other operation being carried out (records of temperatures, storage of data, feedback, etc.).
The following practices must be excluded:
- mandatory temperature readings of each employee if data are recorded in an automated process or in a paper register;
- automated temperature screening using tools such as thermal imaging cameras.
Employees have the right to refuse the temperature check. If an employee refuses it and the employer does not allow him/her to enter the workplace, the employer is still required to pay the employee.
Temperature checks of employees and data protection
The position of the French Data Protection Authority (the “CNIL”) is similar.
The processing of health data is prohibited unless it falls within the limited exceptions of article 44 of the French Data Protection Act (Loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés).
Employers cannot therefore systematically collect and retain the temperature of their employees according to the French Data Protection Authority. Such processing could only be carried out for the purposes of occupational medicine by a healthcare professional.
However, the CNIL considers that the mere checking of employees’ temperature made with a manual thermometer (such as a contactless digital thermometer) does not fall within the scope of Data Protection Laws provided that no trace is being kept, or any further processing is being carried out.
In such context, temperature checks at the entrance of the workplace could be carried by employers according to the CNIL as they are not subject to Data Protection Laws.
The CNIL however does not recommend such practice which shall remain specific and refers to the position of the French Labour Ministry in this respect.
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