GDPR: Business needs Europe-wide track and trace cohesion

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A more coordinated approach across Europe over what track and trace measures employers can use would allow businesses to return employees to work more safely and avoid the risks of a legal minefield, a leading law firm is arguing.

GQ|Littler has argued that the risk of falling foul of complex data protection and employment laws across Europe is dissuading some employers from putting in place proper track and trace programmes.

Multinational employers face a particular problem of dealing with a patchwork of radically different rules in each country in Europe about what tests employees can be required to take and how data from track and trace can be used.

Even though the Europe-wide GDPR governs the retention and use of that data, local approaches are far from harmonised” – Raoul Parekh, partner, Littler

For example, while employers in Austria, Ireland and Italy can take employees’ temperature as they enter the workplace, in France this is not permitted and in Germany it is only permissible where employees are showing symptoms. In Sweden, employers are able to test all employees for coronavirus as they enter the workplace, while in Spain the government has still not provided guidance.

Employers that introduce track and trace measures that breach local GDPR rules could face substantial fines, potentially up to 4% of that businesses’ global turnover or €20m – whichever is greater.

A coordinated approach across Europe as to what track and trace measures are allowed could help ensure a better standard of workplace safety. For example, said Littler, if employers across Europe were allowed the option of testing employees as they enter a workplace then this could reduce the risk of outbreaks across the continent.

The implementation of standardised track and trace measures across different European countries would also reduce the risk for employees moving between different international offices as the lockdown eases.

Raoul Parekh, partner at Littler in the UK, said: “The rules on whether employers can gather health data on employees vary wildly across Europe. Even though the Europe-wide GDPR governs the retention and use of that data, local approaches are far from harmonised.”

“Governments across Europe should work together – through the European Union or otherwise – to develop a more consistent and coordinated approach to the testing of employees and gathering of health data. A joined-up approach will give employers who do want to test employees more comfort and help them avoid bad practices.”

Littler says that until a consistent approach across Europe has been agreed, multinational businesses will have to consider developing specific tailored plans for each country and even each office.

Parekh added: “Employees are increasingly aware of the rights they have under GDPR so employers will have to tread carefully and ensure any track and trace programme they introduce is fully compliant.”

“Rushing a programme into place without careful consideration would be a considerable legal risk.”

England’s track and trace scheme has been strongly criticised by some public health experts for being uncoordinated and ineffective with the decision to outsource its operation to Serco coming under particular scrutiny. Many feel that putting local authorities, local public health teams and local health services (including GPs and NHS laboratories) in charge of testing and tracing – as in Germany, Wales and Scotland – would improve matters.

Examples of vastly different approaches to testing

Country	Stance on temperate checks on employees
Austria, Ireland, Italy	Employers can check employees’ temperature as they enter workplaces
France	Temperature checks are not permitted by government
Netherlands	The data protection regulator has issued conflicting advice
Romania	Checking employees’ temperature will be mandatory for all employers at the beginning of an employees’ shift, along with testing them whenever it is necessary during the shift

Country	Stance on testing of employees
Czech Republic	Employers can require employees to take a test if they are returning to work after having recently travelled abroad in a country with a high risk of infection.
France	Testing of employees for Covid-19 has been forbidden by the government
Germany	Employers may ask employees that present symptoms to have a test taken by a qualified doctor
Poland	It is unclear what the advice is as there are no specific guidelines relating to the testing of employees
Sweden	Employers can test all employees for Covid-19 before they can return to the workplace from lockdown
Spain	Ministry of Health yet to provide guidance.