On May 11, 2020, the UK Information Commissioner’s Office (“ICO”) published guidance on how employers should handle data in the event they choose to test their employees for COVID-19.

The guidance provides a clear reminder that employers must comply with both the General Data Protection Regulation (“GDPR”) and the Data Protection Act 2018 (“DPA”), and that health data, in particular, attracts additional protections.

Legal Basis: the guidance makes clear that most public authorities will likely rely on performance of a public task, set out in law, as their legal basis for processing health data.  Private employers will likely rely on “legitimate interests” (Art. 6(1)(f) GDPR). In addition, all employers will likely rely on Article 9(2)(b) of the GDPR, relating to employer health and safety obligations, in tandem with Schedule 1, Condition 1 of the DPA.

DPIA: due to the sensitivity of health data, employers will also need to demonstrate accountability by, for example, producing a data protection impact assessment (DPIA)—one that must be regularly reviewed and updated. The ICO states that the DPIA should set out:

  • the activity being proposed;
  • the data protection risks;
  • whether the proposed activity is necessary and proportionate;
  • the mitigating actions that can be put in place to counter the risks; and
  • a plan or confirmation that mitigation has been effective.

Principles: the ICO highlights the principles of data minimisation and purpose limitation and makes clear that an employer must collect and retain only the minimum quantity of information needed to fulfil its purpose; for example, it would not be permissible to ask employees about their underlying conditions. So long as it is necessary and relevant for the stated purpose, the employer is able to collect specific health data (including data that is voluntarily disclosed). When collecting data, employers are advised to be conscious of issues concerning security and confidentiality, and the possibility of unfair or harmful treatment.

Intrusive Technology: when considering more intrusive technologies (e.g., thermal cameras and temperature checks), employers must make the case for their use, giving specific thought to their purpose and whether or not they would be necessary, proportionate, and in keeping with reasonable expectations. Where less intrusive methods of achieving the same result are available, the intrusive technology may not be considered proportionate.

Communication: the guidance also covers how to ask employees to take part in testing schemes, highlighting the need for clear, open, and honest communication. Where possible, privacy information should be disclosed prior to data processing. More specifically, the ICO explains that staff should be made aware of:

  • what personal data is required;
  • the purpose for which the data will be used;
  • the individuals or entities with whom the employer will share the data; and
  • the availability of the employer to discuss concerns.

Disclosure: employers are advised to take a “proportionate and sensible” approach and to keep staff informed about potential or confirmed COVID-19 cases, and care should be taken to avoid naming individuals when doing so.

Transparency: the transparency of the data held by the employer is what enables staff to exercise their information rights. The ICO suggests considering setting up secure portals or self-service systems to assist staff in managing and updating their personal data. This would also enable the exercise of the right to data rectification and right to data erasure. Where this is not feasible, basic policies and procedures to ensure data is readily available will suffice.

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Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

Miles Lynn

Miles Lynn is a Trainee Solicitor who attended the London School of Economics (LSE).