Employers have the duty to effectively protect their workers and to prevent possible occupational risks, also in the context of COVID-19. However, when applying measures, workers’ rights must be taken into account in the event of possible effects on their privacy, dignity and physical integrity.
With the third of the extensions of the state of alarm declared by Royal Decree 463/2020, of March 14, coming to a close shortly, it seems that the end of confinement is closer and, with it, the reestablishment of activities in workplaces. In fact, the Government has approved a resumption of activity in different stages.
Given the prospect of a gradual return to what has become known as new normality, both employers and workers are wondering what precautions, recommendations and obligations must be taken into account during this process, bearing in mind that, however much the epidemic may be considered under control, we cannot let our guard down given the threat of new outbreaks. Thus, it is necessary to adopt measures to avoid it.
As regards employers’ obligations, the general duty of effective protection and of prevention of risks to their workers’ health, provided in Articles 14 and 15 of Occupational Risk Prevention Law 31/1995, of November 8, applies, which must be necessarily adapted to the challenge posed by the COVID-19 threat in the process of gradual resumption of all activities.
In this respect, one can deduce from the guidelines and procedures issued by the Ministries of Health and of Labor the responsibility of employers for evaluating the risks of exposure which workers may face in each of the different tasks which they perform and the duty to follow the instructions of the prevention department, following the guidelines and recommendations drawn up by the health authorities from time to time. Some regional authorities have also published their own guidelines for the resumption of work, such as the Guidance for returning to work before and after COVID-19 with health and safety at work, of Madrid Autonomous Community, or the Recommendations for employers and workers on actions relating to situations which may arise due to coronavirus SARS-CoV-2, of the Catalonian Employment Relations Council.
However, in relation to the above, doubts arise as to whether the employer is entitled to apply certain preventive measures to workers, due to the possible conflict with their fundamental rights which this may involve. We refer to measures which, although effective to detect possible cases of infection and to protect the workforce as a whole, would be debatable if they could possibly violate the worker’s privacy, dignity or physical integrity. Examples of this are temperature checks, tests to verify infection or tests to determine whether one has already had the illness, all of this insofar as they are established on a mandatory basis for the worker.
In this respect, in the absence of specific legislative regulation, we must consider the general provisions and interpret them. In particular, this type of measures would fall within the scope of monitoring of health depending on the risks inherent in the work. Therefore, they must be assessed in accordance with the provisions of Article 22 of the Occupational Risk Prevention Law. According to this provision, periodic monitoring of workers’ state of health -which is an obligation that is applied to employers- “can only be carried out when the worker grants his consent”.
However, as an exception to this voluntariness, following a report of the workers’ representatives, cases are established in which the performance of the examination is essential to verify whether the worker’s state of health may constitute a danger to himself, to the other workers or to other persons related to the company. Thus, given the exceptional nature of the situation and the clear threat to persons posed by COVID-19, it could well be considered that these measures are essential to protect all the workers.
Furthermore, it must be borne in mind that one must opt for the performance of such examinations or tests as cause the least disturbance to workers and which are carried out respecting at all times the right to privacy and to human dignity, and the confidentiality of all information related to their state of health, and the result of these tests may not be used for discriminatory purposes nor to the worker’s detriment.
On the basis of the above, the establishment of periodic temperature controls, for example using infrared thermometers, is a measure which could be legitimate and appropriate to achieve the purpose pursued, provided that the data obtained are treated with due confidentiality and respect. In fact, the Guidelines which have been issued by the Catalonian Employment Relations Council envisage the need to implement this measure. The Spanish Data Protection Agency, in the document which it has published containing replies to the most frequently asked questions regarding COVID-19, has confirmed this, although with a reminder that data protection legislation must be observed.
The same criterion could be applied to tests to diagnose or detect the illness, provided that the legal requirements are observed for the performance of this kind of medical tests or health screening of workers. Greater doubts arise as to whether an antibody test could be carried out on a compulsory basis, so as to ascertain whether a person has already recovered from the illness.
In the absence of specific regulation to dispel doubts regarding the lawfulness of the establishment of this kind of test, it would be necessary to assess in each area of activity and job whether the premises for an exception to voluntariness provided in Article 22.1 of the Occupational Risk Prevention Law are complied with.
Garrigues Labor and Employment Department