BUSINESS
"EMPLOYEE ZERO" HOW TO REACT TO A SUSPICION OF COVID-19 AT THE OFFICE?
The state of the epidemic related to the spread of the SARS-CoV-2 virus, announced in Poland on 20 March 2020, forced a large number of companies to switch to remote work, thus reducing contacts between employees to a minimum. However, with the easing of restrictions on the economy and social life (the so-called "de-frosting" process), employees are more and more willing to return to their offices. Repeated intensification of interpersonal contacts – both at work and outside of it – translates into an increased risk of an infected person appearing at the workplace. In view of this risk, employers must carefully prepare for the return of employees to the office, as well as develop plans to respond in the event of a COVID-19 infection, while ensuring the legality of the actions taken.
EMPLOYERS' ACTIONS IN THE CONTEXT OF THE COVID-19 EPIDEMIC AND APPLICABLE LAW Practical difficulties start at the very beginning. Employees are not obliged to inform their employer about a SARS-CoV-2 infection. There are also no provisions that would exempt employers from the restrictions on the processing of personal data revealing information about health. Within the meaning of the EU Regulation on personal data protection, commonly referred to as "the GDPR" (General Data Protection Regulation; in PL RODO), the collection of information by an employer on an employee’s health constitutes processing of special categories of personal data. This includes both information about the actual state of health (information that an employee is infected), and about symptoms that may indirectly indicate the possibility of infection (e.g. high temperature, suffocating
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cough). The GDPR prohibits the collection of sensitive data unless there is an exception provided by law. Thus, the employer must identify a specific legal basis for taking measures such as, for example, surveys with employees about deterioration of health, or recording body temperature measurements as they enter the work premises. In other words, employers should identify a specific legal provision that authorizes them to collect and use health-related data for specific purposes. Unfortunately, neither the GDPR nor Polish regulations, including those adopted in connection with the epidemic, contain such explicit authorisation.
decisions by individual health and epidemiological stations is not uniform. Furthermore, it is worth mentioning that obtaining employees' consent to conduct surveys or research is difficult in practice. For such consent to be valid, the Labour Code requires that providing sensitive information (including health- -related information) be always initiated by the employee.
COVID-19 INFECTION AT WORK – WHAT’S NEXT? At present1, no general standard for dealing with SARS-CoV-2 infection at work has been set. The guidelines issued so far focus on selected sectors of the economy. One of them is guidelines for office workers. Although the binding force of the recommendations published on governmental websites as well as their imprecise provisions raise some doubts, it should be strongly recommended that employers who decide to return employees to the office prepare a return plan and appropriate procedures. The procedures should be aimed both at preventing infections in the workplace, and at establishing a procedure to be followed in the event of an infection. The rules which are worth defining concern in particular health and safety at work in relation to the state of the epidemic. For example, they should specify how to comply with the recommendations for conditions in the workplace in order to maintain
It has been highlighted that the provisions of the Labour Code on health and safety at work entitle – and even oblige – the employer to take reasonable steps to prevent COVID-19 infection among the crew. However, these regulations are very general, hence this interpretation raises doubts as to their compliance with the GDPR. Such a risk was indicated by the President of the Office for Personal Data Protection (the OPDP) in his communications. The President of the OPDP believes that guidelines or a decision of an autho rized health inspection authority should be the basis for collecting data on employees' health. From a practical point of view, it is important to note that the above mentioned decisions may also be issued orally, and then confirmed in writing, which will certainly encourage speed of action, especially in "emergency" situations. 1 This article is based on the legal situation as Nevertheless, the practice of issuing such of 30 July 2020.
Outsourcing&More | September–October 2020
