Employers have an obligation to ensure the health and safety of their employees and the security of their workplace. Stakeholders may therefore wonder whether is it permissible to take employees’ temperatures for the purpose of granting or denying access to business premises or to ask employees to fill in health questionnaires or declarations in relation to Covid-19.
Temperature screening
We would like to highlight that this question requires an analysis of the particular facts on a case by case basis. Luxembourg data protection rules and requirements must always be taken into account in so far as the employer will gain access to personal information as a result of the screening (e.g. the employee’s work location, either on-site or from home).
In accordance with the CNPD’s recent recommendations (1), employers should generally refrain from requiring their employees to provide daily body temperature readings.
Nevertheless, it would be permitted to limit temperature tests to manual collection of employees temperature at the entrance of the employer’s premises, without the creation of a central file or further disclosure (as such processing would not be subject to data protection laws). Similarly, the use of thermal cameras is allowed as long as it does not allow the identification of employees, agents or visitors and is not recorded or re-used.
Health questionnaire/declaration
In accordance with the CNPD’s recent recommendations (1), only the competent healthcare professionals may collect, implement and access notes or healthcare questionnaires from employees containing data relating to their state of health or information concerning, in particular, their family, their living conditions or their possible movements. Employers must therefore refrain from collecting information in relation to the vaccination status or possible symptoms of employees, externals or relatives in a systematic and generalized manner or through individual inquiries and requests. In particular, specific health questionnaires or declaration forms shall not be requested to be completed by employers or visitors.
In accordance with the Luxembourg Labor Code, an employee must inform the employer only of his/her incapacity to work, without providing any further information regarding his or her state of health or the nature of the illness. However, in the context of a pandemic, such as Covid-19, employees whose work brings them in contact with other persons (colleagues and the public) should, every time he or she could have exposed these persons to the virus, inform the employer in the event of contamination or suspicion of contamination. It is therefore recommended circulating to the employees a note in order to remember them their obligation to inform the employer if they test positive to Covid-19, if they present symptoms related to Covid-19 or if they have been in close contact with persons which have been tested positive to Covid-19.
Your contacts for more details: Astrid Wagner (astrid.wagner@arendt.com), Faustine Cachera (faustine.cachera@arendt.com) and Pétré Julien (julien.petre@arendt.com)
(11/03/2022)
Useful links:
(1) CNPD: Coronavirus (covid-19): recommandations de la CNPD relatives à la collecte de données personnelles dans un contexte de crise sanitaire