Employment lawyers at Byrne Wallace have said that relying on temperature screening as a risk assessment mechanism to identify people potentially infected with COVID-19 is far from clear-cut.

In an analysis on the firm’s website, Lorraine Smyth and Brian Murphy also say that the measure is not part of the public health advice to employers or organisations in Ireland at the moment.

Concerns

They say temperature testing gives rise to a number of concerns for employers, including the effectiveness of the measure in preventing the spread of the virus, compliance with data protection and employment law issues.

A Government protocol on returning to work safely, published earlier this month, says employers must “implement temperature testing in line with public health advice”, and workers must "complete any temperature testing as implemented by the employer and in line with public health advice".

Recommendation

The Byrne Wallace lawyers point out, however, that the HSE does not currently recommend temperature testing in the workplace, with the exception of certain healthcare settings.

Chief Medical Officer Dr Tony Holohan said in March that temperature testing had not proved to be effective in past outbreaks such as SARS.

The employment lawyers stress that this does not prevent employers putting such screening in place, particularly on a voluntary basis, but the absence of a public health recommendation may make it more difficult to justify and harder to implement on a mandatory basis.

GDPR

On data protection, the Byrne Wallace lawyers say body temperature is personal data concerning health and is therefore “special category” data under General Data Protection Regulation (GDPR), meaning that its processing is subject to certain restrictions.

They add that navigating through the relevant employment law issues – such as the nature of an enforced absence, the rights to work and pay – could be challenging for employers.