This is a brief summary of the most important issues employers should consider before deciding on the restart of the office work, taking the current pandemic into account.
When deciding on getting back to office work, a gradual and proportionate approach is highly recommended, and employers should be prepared for a possible second wave of the pandemic as much as possible.
Organization of work
1. The first 2-4 weeks of the restart should be a period when working in the office is an option for the employees, i.e. it will not be mandatory and home office will be allowed for those who still wish to work from home. Also, the number of employees staying in the office should be limited to a certain percentage (50% may sound reasonable) of the employees, ensuring the effective implementation of social distancing.
Also, the employer may wish to consider which scope(s) of work may actually warrant physical presence, whereas those employees who can easily do their work from home could keep working from home for an indefinite period of time.
2. After the 2-4 week period, the employees should be split into e.g. two groups where the employees in the first group would be working during week 1, whereas those belonging to the second group would be working in the office during week 2. Employees who are taking care of children below a certain age (children who have no physical school education) and those who are in a special situation (e.g. are pregnant or have had Covid-19 symptoms or have contacted a person who has been or may have been infected with coronavirus) will need to be offered the option to keep working from home for an indefinite period. The situation of those working from home could and should be evaluated every two weeks.
Safety measures at the workplace
1. The employers typically consider measuring the temperature of the employees wishing to enter the office. Based on the information sheet issued by the Hungarian data protection authority in March (i.e. at the time of the outbreak of the epidemic in Hungary), such an action is not considered proportionate and employers are not allowed to measure the employees’ body temperature as this action is reserved for medical doctors to carry out. In our view, the employer may carry out the check if expressly requested by the employees (for safety reasons) or there are circumstances in the context of the workplace where it can be justified that such a measure is necessary for ensuring safety at the work place and there is no capacity to have a doctor at the workplace every morning to do the temperature control (note that ensuring work safety is one of the statutory obligations of the employer). At the same time, it is worth noting that even if an employee has a fever, it does not necessarily mean that he/she got infected with the coronavirus. And vice versa, just because an employee has no fever, he/she may still be a virus carrier and infect others. Thus, the employer is advised to carefully assess the circumstances before engaging in measuring the body temperature. We need to stress that if the employer carries out the temperature control itself, then this may have a data protection compliance risk but, depending on the nature of the workplace and the way temperature control is done (including how data are processed and if they are stored), we believe that there may be arguments in favour of carrying out such temperature control without any serious risks. If the employer decides to measure the temperature, it has to prepare certain documents and properly inform the employees in due course and comply with the data protection principles.
2. If the employer wishes to require employees to fill out a questionnaire in the context of the coronavirus pandemic, the questionnaire has to be drawn up carefully and the employer has to comply with all data protection requirements. In particular, there has to be a valid legal basis and a legitimate purpose of processing, proper prior information has to be given to the employees and certain data may not be processed (e.g. historic health data or medical diagnosis). Furthermore, if the employee reports to the employer a possible infection with coronavirus, the employer may process certain data such as the date of the report, the name of the employee, the possible time of the infection or the suspicious contact, and the measures taken by the employer (for example, calling the doctor or permitting home quarantine).
3. The employer has to make hand and surface disinfectants available and educate the employees about their regular use and also about the importance of thorough and regular hand washing. Also, the employer has to make sure that certain objects and rooms are regularly disinfected.
4. The employer can order that the wearing of facial masks is mandatory during work and, in this case, the employer has to provide the employees with masks. Also, the employer is required to inform the employees about the proper use of the mask (including how to put it on, how to remove it, how to handle it, and how to dispose of it).
5. The employer is required to make sure that effective social distancing is implemented at the workplace, for example, 2-meter distance is continuously held between two employees, no matter if they are at their desks or, for example, having lunch in the office.
6. Employees should be asked to use the stairs instead of the elevators.
7. The employees have to be asked to disinfect the objects they are using during work (such as their keyboard, mouse, laptop, telephone, mobile phone, headset, etc.) prior to the start of the work.
8. A clean desk policy has to be introduced, meaning that the employees should not leave any objects or personal belongings on their desks.
9. Employees should be encouraged to bring their own lunch.
10. Prior to the restart of the office work, the employer has to ask the operator of the office building and require them to only restart the ventilation system after proper disinfection which is necessary to prevent, for example, the evolution of legionary disease. Also, the employer has to make sure that the operator duly disinfects and cleans the areas in common use and, if the operator is in charge of cleaning the office spaces, that they duly clean such spaces.
11. The employer may wish to consider placing a plastic shield at the reception area to protect those working at reception.
1. The employer should prepare and publish a pandemic (business continuity) policy in which the above and some additional issues are to be addressed, such as for example, the measures taken to reduce the risks of infection; the description of communication channels for information; reporting to the designated person of any suspected contact with coronavirus and calling an occupational doctor or general practitioner; ban on the reception of visitors; meeting ban, except for online meetings; travel ban). Publication of such a policy should take place through a circular email or on the employer’s intranet.
2. If there is a works’ council at the employer, the employer is required to ask for the opinion of the works’ council concerning the above measures at least 15 days prior to the decision on the restart. Failure to comply with this obligation does not result in the employer’s decision becoming invalid and no fine can be imposed on the employer, however, it is advised to comply with the said provision of the Labour Code.
3. It is worth noting that getting infected at the workplace qualifies as a so-called work accident and, at the same time, occupational accident, which triggers certain administrative obligations (e.g. preparation of minutes, internal inspection of the accident and, as the case may be, reporting the accident to the competent authority) and social contribution payment obligations on the employer’s side. The fact, however, that the infection occurred at the workplace is really difficult to prove, if at all possible.
4. It is highly advised that the employer double check (when returning to the office) that the IT devices the employees use have acceptable hardware and the proper versions of software installed (including, the software used for the purposes of work and also any anti-virus and anti-spam software), that the devices are duly protected (strong password, encryption), that only authorized devices are used, and that no person other than the respective employee has used the device (e.g. the employee’s children for the purposes of downloading games onto the device), etc.
5. Although, it is not directly related to the restart of the work, due to the fact that one of the consequences of the pandemic is the prevalence of the use of various app-based communication services (such as Zoom or Microsoft Teams), we briefly mention that the employer and its employees are highly recommended to proceed with caution when it comes to using such platforms. The risk we have identified is that if, for example, one of the external partners of the employer initiates such a call, then the invited participant (e.g. one of the employees of the employer) clicking on the invitation link is not aware of the identity of all other participants in the call and, thus, might unwillingly disclose certain information he/she would not disclose if he/she knew who are also participating in the call. As such calls can easily be recorded, caution is advised when it comes to using such platforms to avoid any delicate records being made and used during, for example, competition authority procedures.
The above content does not constitute legal advice; this document merely provides a general summary of the main labour and, respectively, data protection law aspects of the above-mentioned issues. Should you have any questions concerning the above, please send your inquiry to Hédi Bozsonyik and Zoltán Balázs Kovács.
Source: Szecskay Attorney at Law