On March 14, 2020, the Italian Government and several trade unions have signed a protocol, which establishes specific procedures for fighting COVID-19 in the workplace.

The protocol also includes provisions on the processing of personal data of employees.  In particular, it provides that employers may subject their employees to pro-active body temperature controls before entering their workplace.  In this regard, the protocol recommends that employers make sure that:

  • The body temperature is only measured in real-time, and is not recorded unless this is necessary to document that an employee was not allowed into the premises due to his/her temperature being higher than 37.5°;
  • Employees are provided with an appropriate privacy notice, which should specify, inter alia, that: (i) the purpose of the processing is limiting the contagion of COVID-19; (ii) the legal basis for the processing is compliance with the anti-contagion measures adopted by the Italian Government; and (iii) the data may possibly be retained for the duration of the state of emergency. Such a notice may also be provided orally;
  • They adopt appropriate security measures, and identify and provide adequate instructions to the personnel in charge of the processing;
  • The data they collect are exclusively processed for the purpose of limiting the spread of the virus, and are not communicated to third parties other than the competent public authorities or other authorized entities;
  • The information on the individuals who are infected by COVID-19 or experience its symptoms is treated as confidential. This also applies to information provided by the employee on whether he/she has visited a “risk area” or has been in contact with infected individuals.

In addition, the protocol provides that employers should inform their employees that they may not enter the workplace if, during the last 14 days, they have had contact with individuals who are infected by the virus, or have visited one of the “risk areas” identified by the World Health Organization.  In this regard, the protocol allows employers to ask that their employees sign a document in which they declare that they comply which these requirements before they enter the workplace.  However, such a document should not require that the employees disclose additional information on the infected individuals they have been in contact with or about the specific places they have visited.  Also, in this case, employers are advised to follow the notice, security and confidentiality requirements mentioned above.

The adoption of the protocol partially waives some of the data privacy restrictions identified by the Italian Supervisory Authority (“Garante”), which previously found that companies should not engage in the spontaneous collection of the health data of their employees, unless this is specifically required by law or requested by the competent authorities.  The adoption of the protocol establishes a specific legal basis, which justifies the adoption of the measures described above, and therefore allows the related processing of personal data.  However, other measures (e.g., the systematic and generalized collection of the employees’ whereabouts) are likely to remain subject to the limitations identified in the Garante’s guidance.