The de-escalation of measures which restrict mobility and economic activity has meant that certain companies check the temperatures of their employees, clients and users as a requirement for entry to workplaces and shops.
The Spanish Data Protection Agency has expressed its concern about this practice, through a statement highlighting the interference with the rights of citizens that temperature checks entail and the lack of guidelines set out by the Health Authorities to apply such measures.
Thus, the Ministry of Health, in Directive SND/388/2020, of May 3, which establishes the conditions for the opening of certain shops and services to the public, and the opening of archives, as well as for the practice of professional and federated sports, has not prescribed temperature checks as a requirement for de-escalation.
The Spanish Data Protection Agency establishes that the processing of health data must comply with current legislation, and advocates that such measure be applied according to criteria of usefulness and proportionality that are defined by the Ministry of Health.
The health criteria should determine the practical aspects of the measure, such as establishing a temperature limit which indicates that infection may exist.
Additionally, the collection of temperature data must be governed by the principles established in the General Data Protection Regulation: principles of legality, purpose limitation, and accuracy of the data.
The Agency has stated that the basis of the processing may not be, in this case, the consent of the interested party, since it is not freely granted. The citizen could not refuse to submit to taking the temperature without being prevented from entering the shop, workplace or means of transportation.
In the workplace, the Agency indicates as possible legal grounds the obligation of employers to guarantee the safety and health of the employees in their service.
It is obvious that such grounds could be generally extended since both customers and employees converge in shops.
On the other hand, in application of the principle of purpose limitation, temperature data should only be obtained to avoid access to people who are foreseeably infected, and such data should not be kept unless justified.
Finally, and in keeping with the principle of accuracy, the temperature checks should be carried out by means of approved measuring equipment and by trained personnel.
At these times when there is no criterion set out by the health authorities regarding temperature checks, it is advisable not to apply this measure and opt for less intrusive ones.
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