Temperature update - employers beware!

In the fight against corona in the workplace, the (im)possibility of temperatures for employees has been written about a number of times. On this subject, see among others the article by my colleague Annemarie van Woudenberg: "Commercial corona test for employees; a godsend?"

Although it is not entirely clear whether and to what extent this is permitted, in practice employers appear to regularly measure the temperature of their employees. The Personal Data Authority (AP) launched an investigation in response to this trend. It investigated two employers about their way of taking temperatures of employees to assess whether this is in compliance with privacy laws. On Nov. 26, 2020, the AP announced in a news release that it concluded that the employers investigated were violating privacy laws.

Consent insufficient

Employers are violating privacy laws by seeking consent from their employees. Consent is in principle a valid basis under the General Data Protection Regulation (GDPR) for processing personal data. However, it is subject to the requirement that the consent has been freely given, and this is not possible in the relationship between an employer and employee. This is because the employee does not have an equal position in relation to his employer, so he may feel obliged to give the consent.

In addition, one of the employers attached adverse consequences to refusing to give consent. This, of course, certainly leads to forced consent, which already completely fails to meet the requirement of freely given consent.

The AP says it will eventually recheck whether these employers have changed the way temperatures are set in a way that does comply with the AVG.

What can be done?

Thus, consent is not a valid basis for tempering. However, this does not mean that taking temperatures is never possible. One possibility is that the taking of temperatures occurs voluntarily - for example, employees in a locker room have the option of independently taking their temperature and drawing consequences from it - or when the temperature is merely read and not processed in any other way. In both cases, the AVG does not apply because the temperature (the personal data) is not stored or otherwise (automatically) processed.

Conclusion

The AP's investigation tells us that asking for consent can in no way lead to lawful temperatures of employees. However, the investigation and news report also provide some good news; namely, that the AP assumes that a way of taking temperatures does exist that does comply with privacy laws. We are happy to think with you about which way that is.

Finally, the AP has agreed to continue to monitor temperatures. So employers, think carefully about temperatures before the AP's next investigation of you!