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COVID-19’s Effect on the Dynamic Workplace Safety-Employee Privacy Relationship

The New York Law Journal

Erika C. Collins and Ryan H. Hutzler, attorneys in the Employment, Labor & Workforce Management practice, co-authored an article in The New York Law Journal, titled “COVID-19’s Effect on the Dynamic Workplace Safety-Employee Privacy Relationship.” (Read the full version - subscription required.)

Following is an excerpt:

Over the past several weeks, some local governments around the globe have begun slowly to initiate progressive measures to revise and even rescind COVID-19 emergency legislation, orders and lockdowns. These governments now are grappling with workplace-specific issues.  As such, employers must determine how to maintain their duty of care to all employees and to protect employees’ health and safety, while safeguarding employees’ privacy.

This inevitable and inherent tension underlies the discussion surrounding several workplace issues, including COVID-19 testing, taking temperatures, requiring face coverings and disclosing COVID-19 exposure in employee return to work questionnaires. The below analysis highlights some general themes and practices before providing some country-specific information.  Note, however, that this is intended as a high-level overview of the applicable legal issues in certain jurisdictions, and this country-specific information likely is not sufficiently comprehensive or exhaustive to address fact-intensive inquiries and concerns.

COVID-19 Testing

Assuming that COVID-19 tests are available and can produce accurate results quickly, certain countries, including Australia and Brazil, allow employers to require employees to submit to COVID-19 tests. In such countries, the principle of protecting employees’ health is paramount in relation to employee privacy concerns. Employers, however, may be required to support such a request with a lawful and reasonable purpose. For example, employers must comply with privacy laws when requiring COVID-19 testing of employees and failure to do so may render such requests unlawful.  In addition, prior to requiring a COVID-19 test, employees may have to show or report COVID-19 symptoms.  Many countries also require employers to obtain employee consent in a certain form prior to mandating COVID-19 testing. For example, in Luxembourg, Thailand and the United Kingdom, employee consent should be obtained in writing.  That said, some countries, including France and Germany, among others, do not allow employers to require COVID-19 testing of employees because, for example, nasal swabs are invasive and employers unlikely are able to justify that such a test is necessary and proportionate, except in very exceptional cases, employers are not allowed to require employees to submit to any type of health check and employers cannot process any medical data of employees.  Some other countries, including the Netherlands and Singapore, do not allow employers to require COVID-19 testing, and instead only company doctors or medical professionals may assess whether employees should take a COVID-19 test.