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18 May 2020

COVID-19: Can I temperature test my workers?

By Shae McCartney, Brett Thompson and Selena Lang

Employers may implement temperature testing, however, they must be mindful of the limitations as a control measure, as well as taking into account employee privacy concerns.

According to the World Health Organisation, temperature testing may be effective in detecting people with COVID-19, but it will fail to detect those who are asymptomatic or those on medication that reduces temperature. It is also possible that people tested may have a high temperature for a reason other than COVID-19. This calls into question the effectiveness of temperature testing as a control. Nevertheless, we consider that there is scope for employers to implement mandatory temperature testing prior to entry to a workplace.

Forcing someone to submit to a temperature check against their will is unlawful. However, employers can require temperature testing on a voluntary basis as a precondition to entering workplaces. This would be comparable to the requirement to wear appropriate PPE prior to allowing access. Given the risk to health and safety posed by the COVID-19, it is arguable that this step is reasonably practicable to ensure health and safety of those at the workplace.

Taking a person's temperature amounts to the collection of "sensitive information", which is a subset of personal information under the Privacy Act 1988. The Privacy Act contains the Australian Privacy Principles (APP); APP3 says an organisation must not collect sensitive information unless the individual consents and either:

  • the information is reasonably necessary for one or more of the employer's functions or activities; or
  • if the employer reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety.

Where a worker consents, the employer can take their temperature on the basis that it is necessary to lessen or prevent the threat to life and/or health and safety posed by COVID-19 (APP3, and clauses 16A and 16B of the Privacy Act).

The Privacy Act imposes a range of obligations that apply prior to the collection of the information and in relation to recording and storing the information. However, on the basis that the employer is proposing to simply take temperatures as a precondition of granting access, then only select obligations are likely to be applicable, including:

  • prior to taking the test, notifying people of the employer's identity and contact details, the purpose of the test, the consequences if it is not collected (eg. no site access), access to the employer's privacy policies, and indicating whether the information will disclosed or not. This can likely be done via an information sheet before obtaining consent to take the test (APP5); and
  • after the test is taken, ensuring all reasonable steps are taken to destroy the information and de-identify it. If it is collected as described above, this would be as simple as clearing the thermometer and making sure it is not stored after the test is performed (APP11).

If the employer proposes to retain the information, record it with identifiers, use it for an additional purpose, or disclose it to others, further obligations will apply under the APPs.

You can get more information on an employer's privacy obligations here.

The primary concern is that the employer must avoid the temperature test contributing to the spread of COVID-19 and/or other contagious diseases or infections. The employer should also consider how it will dispose of the waste that results from the tests and what steps it will take if a person presents with a high temperature or other symptoms.

Recently, Queensland's Chief Health Officer has encouraged resources companies to implement a number of measures, including temperature testing, in a bid to help reduce the spread of COVID-19 within the resources industry.

Specifically, companies will be required to submit a Health plan that fulfils a variety of requirements stipulated by the Health Officer. A number of extra precautions for FIFO and drive-in drive-out (DIDO) workers have also been implemented.

The Australian Petroleum Production & Exploration Association has supported these measures, as well as recommending additional measures, which are outlined in its Novel coronavirus (COVID-19) Australian Upstream Oil and Gas Industry Protocols.

However, as outlined above, temperature testing has limitations as a control and in terms of what is reasonably practicable to eliminate or reduce the risk of COVID-19 employers should consider temperature testing as only one of its potential controls to mitigate the risks of the virus.

Employers should also consider what other measures may assist in mitigating the risks (such as social distancing, good hygiene practices, increased cleaning of high touch surfaces, PPE and training workers on how to recognise the symptoms of COVID-19 and what to do in these circumstances).

What does this mean for you?

Employers should obtain expert advice on the most appropriate way to set up and conduct the testing, including who is trained and qualified to carry out the tests, and how an exclusion from the workplace will be enforced.

Employers must also ensure that the controls implemented to manage the risk of COVID-19 are regularly monitored and reviewed to ensure they remain relevant and effective. Review of control measures is especially critical where new information about the virus is being released on a frequent basis.

Employers also need to keep the National COVID-19 safe workplace principles at the forefront of their decision making, as well as be on the lookout for the guidance material published on the Safe Work Australia website.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.