COVID-19 EDITION 12: ARE EMPLOYERS ALLOWED TO CARRY OUT TEMPERATURE TESTS ON EMPLOYEES?

July 1, 2020

Yes, employers can carry out temperature tests on willing employees, but the test should be a ‘no contact’ test, and employers are not allowed to force employees to submit to a temperature check.

Employers have obligations to maintain a safe workplace and they have a right to restrict access to the workplace given the obvious health risks associated with COVID-19. Taking the temperature of an employee’s forehead with a handheld ‘no contact’
thermometer is not time consuming or intrusive and therefore asking an employee to undertake a temperature check is a reasonable management direction. Using contact methods to take a temperature reading is usually not reasonable.

If employers do conduct temperature testing, they are bound by the Privacy Act 1988 (Cth) and need to ensure they comply with the Australian Privacy Principles, as an employee’s temperature is sensitive information.

In the present environment an employee who refuses to undertake a temperature test can be considered to have failed to follow a reasonable management direction and the employer can take appropriate action against the employee. When the declared state of emergency is over however, asking to take the temperature of workers may no longer be reasonable.

Employers also need to be mindful that temperature testing employees is not an accurate guide as to whether an employee has COVID-19 and they should factor this into any actions they intend to take that adversely affect the employee.

If an employee’s temperature is high, it raises an issue of what actions are available to an employer. Does the employer send the employee home? If so, is the employee entitled to be paid, especially as they have turned up ready, willing and able to work?
Allowing an employee to work at the work premises may expose the employer to damages claims from other employees who subsequently contract COVID-19 and their exposure can be traced to the employee who had a high temperature and was allowed to work.

We suggest a common sense and mutually respectful approach be taken by both employers and employees. The employer should clearly explain to the employee the risks to the workplace and ask the employee to return home to work from home if
possible. If work cannot be done at home the employer can either grant special leave, sick leave, or if the employee chooses it, annual leave or leave without pay. The employee should also be requested to be formally tested for COVID-19. Ideally the employer should have explained the procedure in advance of starting any testing on employees.

Employers on JobKeeper may also consider issuing a stand down direction to the affected employee, though employers need to ensure they follow the correct procedures before issuing the stand down direction.

If you are uncertain of your rights and obligations in these uncertain times, please obtain legal advice.

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