Preparations for Returning to Work (RTW): Covid-19 and the GDPR

The Government’s recently-issued ‘Return to Work’ protocol marks the beginning of a new phase of dealing with the Covid-19 crisis, as we attempt to return to some form of ‘normality’ while acknowledging that the danger has not gone away and that new procedures are needed to keep our colleagues, our clients and ourselves safe.

In addition to the understandable desire to provide a safe working environment for all those returning to the office or workplace, we must also ensure that the measures we put in place (technical, organisational or procedural) are appropriate, proportional and compliant.

The Return to Work (RTW) guidance is effectively divided into three phases or areas of focus:

• Preparation for the return of staff and customers
• Management of day-to-day activity within the shop, office or premises
• Appropriate responses to Covid-19 related incidents or illness at work

All three phases have GDPR implications and we will outline them in a series of three blog posts as part of our Returning to Work (RTW) and GDPR Considerations eBook for consideration.

In this, the first of three blog posts we will look at preparations for return to work (RTW) of staff and customers.

Even as we consider the challenges of returning to work in the office or retail outlet, it must be remembered that the Protocol encourages working from home for those who can continue to do so. That change in working practice is likely to be the single most significant impact of the current crisis, and one that will have a lasting effect on the way we work in Ireland.

The Protocol recommends that organisations consider a number of measures before their staff and customers return to the premises. As mentioned, hygiene and distancing are integral to the continued safety of staff, so deployment of appropriate materials are expected, such as soap, wipes, personal protective equipment (PPE) where required and hand sanitiser, with the associated availability of bins for disposal.

The organisation should also consider a review of sick leave policies and forms and any changes to standard communications or induction training which might be made necessary as a result of Covid-19 provisions. This might involve getting advice from the organisation’s medical or Occupational Health services provider. Where on-site medical staff are available, their input is important to ensure that reasonable and proportional measures are being adopted to deal with the issue, within the context of the organisation, its operational activities and its workforce.

Organisations are advised to review any specific aspects of work policy in order to see whether these need to change in light of Covid-19 measures – for example, staggering breaks to prevent congestion in the canteen or break-out areas, avoidance or reduction of requirement for face-to-face meetings, adoption of secure video or audio conferencing facilities, reducing the number of staff permitted in the lifts at any one time, etc.

CCTV may be deployed, or re-deployed, in order to help with these measures and to enable the organisation to monitor and identify congestion or failure to comply with the new distancing protocols. CCTV may be used on-site within the office, outside the premises or even in company vehicles where reasonable and appropriate to do so. With that in mind, organisations may want to consider modifying their Fair Processing Notices in relation to this expanded use of CCTV. Equally, in the interests of transparency and fairness (Pr.’s 1 and 2), organisations must ensure that any such change in purpose or use of technology is proportionate and appropriate, protecting staff and customers without intruding unnecessarily on their privacy.

Recent HSE reports indicate a substantially higher incidence of infection among those who have been in contact with infected persons, even where they do not display the symptoms.

Employers are therefore encouraged to liaise with staff who are planning on returning to work, requiring them to complete a questionnaire indicating their health, recent travel and recent interaction with others. Here again, the purpose is to assess the risk associated with each person returning to the premises, particularly those who have been diagnosed with Covid-19 or who have been in contact with family members who have been diagnosed.

In the interests of Minimisation (Pr. 3), employers should limit the questions they ask to the most pertinent information to achieve this purpose – a draft template is attached as Appendix I of this document, but organisations should feel free to modify it according to their own requirements. Bear in mind that the purpose of this document is to ascertain that the employee has been symptom-free for a period of time, has not travelled outside of the jurisdiction and has not been in contact with a diagnosed case of the virus for any substantial time. For this reason, the employer should limit the data being sought to the information necessary for the purpose.

For those organisations already familiar with Privacy Engine™, the recently-introduced Questionnaire facility already carries a Return To Work questionnaire which can be used or modified as a template for this purpose.

We have included an RTW Questionnaire Template in Appendix I of our Returning to Work (RTW) and GDPR Considerations eBook.

If you would like to learn more about GDPR principles which apply to RTW preparations and guidance for employers on key questions being raised, you can download a free copy of our Returning to Work (RTW) and GDPR Considerations eBook by clicking on the link below or you can call us on +353 (0) 1 513 6301 to find out how we can support you and your organisation as you run through the specific challenges of your site or circumstances.