In an attempt to keep Covid-19 out of the workplace, many employers have been inquiring about the possibility of performing temperature checks before employees enter their premises each day.

The Belgian Ministry of Employment’s position until last week was fairly relaxed: its FAQ document referred to the stance taken by the Belgian Data Protection Authority, which currently takes the view that simple superficial temperature checks where the result is not recorded do not constitute a processing of personal data. The Ministry of Employment thereby at least implicitly accepted that carrying out temperature checks in the workplace could be legitimate.

This all changed last week, when the Ministry quietly amended its FAQ without drawing any attention to the change. In summary, the Ministry is no longer a big fan of these checks, mainly because they create a significant number of false positive and negatives. False positives may be explained by other bodily processes which cause a temperature (the FAQ mentions the flu and ovulation as examples). False negatives occur where employees are contagious but do not show any symptoms, or at least not fever.  Combined, these false results significantly reduce the reliability of temperature checks.

Conclusion: the Ministry now says “No”, unless the temperature checks have been approved by the employees. This approval should be reflected through the inclusion of the temperature checks in the employee handbook. Approval given orally or even just tacitly (by taking it) by an employee on the day at the moment of the test will not suffice for this purpose. The process for changing the employee handbook differs depending on whether the company has a works council:

• The company has a works council: the change is to be discussed in the works council and if employee representatives do not agree, the social inspectorate will step in to mediate;
• The company does not have a works council: a draft of the proposed change to the handbook is to be posted on company premises for a period of 15 days. Employees are invited to give their comments. If there are any such comments in opposition to the proposal, the social inspectorate will step in to mediate.

In other words, if your company does not have a works council, it will take at least 15 days before you can introduce the temperature checks. In both cases, it will be helpful to the employer to set out its intended testing processes (and the safeguards around it) in as much detail as possible. This may include that the testing will be administered by a medical practitioner, normal results will not be recorded and that in the case of a high reading the test will be re-run in, say, an hour to flush out any momentary spikes in body temperature.

We are all allowed to change opinions every now and then, but I think that we can still say faintly that it would have been nice if the Ministry had changed its view before we had all started to come out of lockdown such that employers could have done this preparatory work in good time for the return.