Sentient Group Ltd
 
Info Update 2020/46                                                       Issue Date: 11/09/2020
 
Should we be taking employees' temperatures at work?
 
Whilst the government have put out a lot of advice regarding steps to be taken for ensuring we all work safely; the detailed guidance does not address general workplace temperature testing. Consequently, the decision is left to employers in many cases.

As we already know, the most common symptoms for Covid-19 are:
  • a new continuous cough
  • fever/high temperature (37.8C or greater)
  • loss of, or change in, sense of smell or taste (anosmia)

A new continuous cough is where the person:
  • has a new cough that has lasted for an hour
  • has had 3 or more episodes of coughing in 24 hours
  • is coughing more than usual

Whilst taking an employee’s temperature can be a useful method for detecting one of the main symptoms of COVID, it should be used with caution as not all people with COVID will present with fever. In fact, a person can be infected with COVID whilst having no symptoms at all, i.e. they are asymptomatic.

A normal body temperature does not prove that a person isn’t carrying the virus. Moreover, infected people who do not develop a fever or who do not show any symptoms would not be detected by a temperature reading and could be more likely to unknowingly spread the virus.

Furthermore, an employee’s temperature may be abnormal because they have just entered into the building from outside or due to physical exertion e.g. exercise (running to work), or due to air conditioning within the building.

Whilst taking an employee’s temperature may have limited value, you may decide to carryout temperature checks, either to reassure staff that it is safe to come into the workplace, or in an attempt to discharge your health and safety duties to provide a safe place of work.

What are the temperature parameters?
Clinical infrared thermometers (IRT) use algorithms to give an estimate of a person’s core temperature, as the difference between core and infrared facial measurements can be up to 1.5°C. A normal body temperature will usually be shown as being between 36.1 and 37.2°C. A fever is classed as a temperature above showing above 37.8°C.

Non-clinical devices, which are normally marketed for food or industrial temperature testing, will provide the actual temperature of the forehead and not the core temperature. The forehead reading using a non-clinical IRT is likely to be in the range of 32°C and 34°C where the body temperature is normal. A temperature reading above 36°C is likely to indicate a fever.

It should be noted that some machines may not be reliable enough to detect or exclude fever. Temperature testing should be used as an additional step to manage COVID-19 procedures, and not as the only means of detection.

When screening using an infrared forehead thermometer, it is recommended that if the temperature is higher than the normal range, the person should have their temperature re-measured using a clinical thermometer. If the core temperature is above 37.8°C the person should contact NHS 111 to discuss whether they should self-isolate and/or arrange for a test.

Legal issues
The legal issues involved in testing temperatures at work are complex and will also involve consideration of data protection laws.

The easiest way for employers to conduct such medical tests would be on a voluntary basis Employers should openly explain the current Coronavirus advice, their concerns and risk management strategy. Employees may then choose to have their temperatures taken based on this advice.

However, if employees do not agree and you have no express contractual provision or agreed policy in place, then you cannot take the employees temperature. You should not try and force the issue with threats of disciplinary action/suspension etc. Even if there was such a provision going down the formal disciplinary route may be inadvisable, from an employee relations perspective.

It could be argued that there is an implied contractual term that employees should comply with a reasonable request from their employer. On the one hand this could be a reasonable request on the basis that employers have a duty to protect the safety of their workplace under the Health and Safety at Work Act which includes ensuring that employees are not infecting others with the Coronavirus. On the other hand, from a practical point of view, an employee may be infected with Coronavirus without yet having a raised temperature, so such a request is unreasonable. Equally some businesses, such as public transport and healthcare, pose different safety risks where testing may be more justified.

As stated above, you need to consider the Data Protection implications of recording employees’ temperature and any results of Covid-19. Any such data will be classed as sensitive personal data. It is likely that you could establish a legitimate reason for processing this data as being necessary to comply with employment and social protection law or for reasons of public interest in health. However, you will be required to have a policy document covering the processing to ensure compliance with key data protection principles including transparency, data minimisation and security requirements.

Finally, we get into the tricky area of what to do if an employee has a high temperature? An employer may reasonably require them to go home as they have a temperature which suggests an illness even if not Coronavirus. If NHS 111 recommend they self-isolate, or their GP declares them unfit for work, then you would treat the absence as being off sick and pay company sick pay (if applicable) or Statutory Sick Pay (SSP).

If the employee needs to self-isolate, but can work from home, then you could facilitate the employee working from home for the duration of the self-isolation period.

But what if they refuse to go home or demand that they are well enough to work on site? Arguably, you are depriving them of work; and if you refuse the employee admission to work, the issue of their pay needs to be addressed! The employee could argue that they are entitled to full pay, as you are depriving them of working.

So what is the solution?
The starting point is to take their temperature again after a little while to see if it now falls within the ‘normal’ parameters. If the employee’s temperature remains outside of the ‘normal’ parameters, then you could suggest the employee contact NHS 111 for their advice; or they obtain a medical certificate from their GP confirming they are fit to work. The problem with this solution, is the time to get an appointment, and some GPs do not necessarily provide a Fit Note, or there is a charge for issuing a Fit Note in these circumstances.

As you can see it is not a straightforward issue and whilst we would all hope that in today’s climate employees would happily cooperate and volunteer to be tested, it is a complex area and you should seek advice accordingly!
 
 
 
The advice and comment in this update is not meant to be an authoritative statement of the law. The articles and summaries should not be applied to any specific set of facts and circumstances without seeking further advice. Whilst every care is taken to ensure that the content is correct Sentient cannot accept responsibility for the accuracy of statements made nor the result of any actions taken by individuals after reading such.
 
 
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