In the first wave of COVID-19, the general application of temperature screening for all employees was considered excessive. But now with the second wave of the COVID-19 pandemic, in the light of current community-wide and massive number of infections, the Hungarian data protection authority (DPA) revised its former opinion and made temperature screening a more flexible and accessible tool for employers.

VJT & Partners has collected the key issues employers need to keep in mind when carrying out temperature screening.

May I require employees to pass a body temperature check before they enter the workplace?

In the light of significant increase of COVID-19 infections in Hungary, the Hungarian DPA made the temperature screening regime much more flexible. Such screening is possible if the following conditions are met:

• The individual subject to screening is entering your premises.
• The same uniform measure applies to all individuals who intend to enter your premises (regardless whether it is for employment or some other relationship).
• Personal identification of the individual subject to screening is not part of the process.
• The screening does not involve recording, storage or transfer of personal data.

For what purpose may I use the information on an elevated temperature?

It is not allowed to use this piece of information to draw any conclusion on the individual’s health status.
Your organization may use this piece of information only for a single purpose: to decide on either allowing or refusing the entry of the individual to your premises (depending on whether his/her temperature is below or above the predetermined value).

What may/shall I do in case of refusal of the entry of the individual?

Your organization may not record the identity of the individual who was refused to enter your premises. You may only collect his/her data in an anonymized manner for statistical purposes (e.g. how many people were refused to enter your premises).
We advise you to build into the process that your organization notifies the refused individual in a transparent manner (e.g. warning sign put in front of the entry space) that it is his/her responsibility to take the next steps after refusal (e.g. contacting the doctor, requesting sick leave, or informing his/her manager at work).

May I refuse the entry of all individuals who have an elevated temperature?

Yes, in general. But it is possible that the individual’s temperature is higher than the average for non-COVID-19 related reasons (such as drug treatment). In such case, your organization may accept a document issued by a doctor, which allows the individual to enter your premises. This must be properly reflected in your internal policy and privacy notice.

If there is any change in the COVID-19 trend, will the DPA again revise its opinion?

Once the number of COVID-19 infections will start to decrease significantly for any reason (e.g. COVID-19 vaccine) it is possible that the DPA will re-consider its current position and regard temperature screening as an excessive measure.
But as the Hungarian government has just reintroduced the state of emergency for up to 90 days (which could be extended), we do not expect that this will happen in the near future.

What do I have to do as a next step to build up the new temperature screening process?

It is advisable to review and revise your internal procedures and privacy documentation (such as privacy notice and legitimate interest test) to fully comply with the DPA’s newest expectations.
Endre Várady, head of VJT & Partners’ data protection team is here to assist in creating lawful and tailor-made processes.

Can we make it public within the company that one of our employees has been diagnosed with the disease?

If our employee has been diagnosed with the disease after returning from a holiday from abroad and has not been working since then, nor has been in contact with another employee, then we cannot make his or her illness public within the company. If our employee was infected while he or she was working, it is reasonable to inform those colleagues who may have been in contact with the patient. However, even in this case it will not be justifiable to inform all staff working at different premises or in separate buildings. If we provide information in-house revealing the name, we must first inform our sick worker about this. Also, we must ensure that the human dignity of our employee is not compromised by this situation and that only the name of the patient is published.

What happens if entry to our workplace is prohibited by an extraordinary measure?

In this case, the first step is to assess whether the job can be transformed so that it can be done in home office or as remote work. If remote performance of the activity is possible, our employee will be subject to the usual rules and will be entitled to salary. However, if we are unable to transform work so that it can be performed from home or as remote work, we have the following options:

• We can agree with the employee that he or she will take his or her regular paid leave or take unpaid leave for the duration of the pandemic closure.
• We can introduce working timeframe, or if we already use it, we can immediately modify the previously communicated working time schedule.
• We can also deviate from the general rules on working timeframe by reaching an agreement with the employees.
• The above solutions can be applied combined one after another.
• As last resort we can argue that due to an unavoidable external cause – the epidemiological situation may be such a case under certain conditions (e.g. a government decree directly limits the operation of our business) – we are unable to provide work, in which case we do not have to pay the employees’ salary.

Should we continue paying the employees’ salary if we are unable to employ them due to the measures put in place because of the pandemic?

It is important that the reduction of the workload may not always be the direct result of the measures implemented in an emergency situation. We do not have to pay a base salary if we are unable to employ our employee due to the governmental measures under the state of emergency aimed at managing the pandemic. For example, if we are an event organizing business, our company will be unable to continue business because of the measures; or if we run a cinema or a theatre, we cannot open either; or if our shop is only permitted to stay open until 3 pm beyond which we cannot employ our employee; then these cases can be directly connected with the state of emergency measures.
However, the epidemiological situation does not justify refusal to pay the base salary if our company has experienced a decline in the orders from our customers or if consumer demand decreased due to the pandemic. In such cases it may be more reasonable to come to an agreement with our employees to take paid or unpaid leave. In case of unpaid leave the employer may undertake to pay the minimal health insurance contribution (HUF 7710 per month) for this period to ensure that the employee remains entitled to health care.

Can we reduce our costs if we are unable to employ the employees?

State measures currently assist companies operating in the tourism, hotels, entertainment, gambling, film, performing arts, event organizing and sports services sectors. From March to June 2020, we are not required to pay any public duties after the salaries paid to employees of these companies, with the exception of in-kind health insurance contribution, which is capped at HUF 7,710. No similar regulation has been published that concern companies in other sectors. If the employer decides not to maintain the employment (not even in the form of part-time employment), then the employment can be terminated based on the employer’s internal operational reasons (e.g. downsizing). The parties can agree for the future when the pandemic will be gone and the government measures introduced will be withdrawn. For example, the parties can agree under certain conditions that (i) the employer is obliged to take back the employee (and the employee is obliged to re-establish the employment) or (ii) the employer is obliged to make an offer to the employee to re-establish the employment. In both cases it is important to set forth in the agreement that the length of the previous employment will be taken into account under the new employment if the previous one was terminated without payment for notice period (and severance payment, if such entitlement applies).

Can we change the already announced working time schedule on ground of the new situation?

Yes. The working time schedule already announced may be amended in the event of unforeseen circumstances. While up until now this change could only be ordered by announcing our intention to do so 96 hours in advance, in the current situation it is possible to change the working time schedule immediately.

Do we need to ensure receipt of our mail at the registered office of the company if otherwise all our employees are working from home?

Hungarian Post is currently still operating and delivering mail, so we have to receive the mail addressed to the company’s registered office. The measures introduced in the current situation do not relieve us of this obligation. However, this does not mean that we need to be present at the registered office.
Certain mail items do not require personal receipt, these will be sent to our mailbox, from where we can pick them out. Registered items will, however, need to be picked up in person and we will get a notification about this in our mailbox. It is best to have a designated member of the staff to periodically empty the mailbox onsite and pick up personally the registered mail at the post office as those will only be kept for a limited period of time before returning to the sender

Further questions:

Are there special rules that I only need to apply during the pandemic?

There are no specific rules for epidemiological situations. During these times it is still a general obligation to ensure a safe working environment that does not endanger health. Therefore, we must do everything possible to reduce any threat. These measures can even involve the processing of health information, so we must also follow the applicable rules. Although the rules on data processing have not become more flexible, according to the Hungarian Data Protection Authority, employers can take necessary and sufficient measures whether against employees or third parties in order to prevent the spread of the pandemic.

Can employees be required to report their infection?

Yes. Firstly, an employee must not endanger the health of the co-workers or the employer’s operations. Secondly, while in an employment relationship, the employee is subject to the obligation of providing information and to cooperate.

When is sick pay due and when is it not?

If the employee has already been diagnosed with the disease, he or she must go on sick leave and will receive sick pay. Quarantine ordered by the authorities – which is ordered by the general practitioner according to the provisions of the National Public Health and Medical Officer – also qualifies those affected by the measure for sick pay. In contrast, in case of voluntary quarantine, the person concerned is not entitled to such benefit. If the infection is only suspected, neither sick leave nor sick pay is due. In this case, for example, the employee may take leave or can agree with the employer on other solutions, such as unpaid leave.

Can I record data on an employee’s infection?

Yes, but we must adhere to the rules on data processing. As part of those we have an obligation to provide information prior to the data processing. Furthermore, we must conduct a legitimate interest test, as the legal base of the data processing will be our legitimate interest. Only such personal data can be processed, which is strictly necessary to identify the person concerned and to reveal the circumstances of the infection or the threat of infection. We may retain this information only for as long as necessary. We must note, however, that collecting, evaluating and drawing conclusions from the data relating to the symptoms of coronavirus is the responsibility of health professionals and authorities, and we are only entitled to know the end result.

What can we not do?

In the current situation, we cannot screen all employees and collect information relating to their medical history. We must continuously evaluate the situation and change our behavior accordingly. So, we can only introduce a more strict and broader spectrum information collection if the epidemic will reach such a stage that would require more serious measures.

When can an employee refuse to work?

An employee may legitimately refuse to work if the risk of infection at a workplace is extremely high and the conditions for a healthy and safe work environment cannot be guaranteed. In this case, the employee is entitled to his or her salary and must be available for work at home on a standby basis.

Can we order the employee to undergo a medical examination?

Yes, if our risk assessment or consideration of the individual circumstances indicates that our employee is in a job that is particularly at risk of infection. In such cases we can order a mandatory medical examination. However, this should only be done by a health professional or a person under his or her professional responsibility.

If schools, kindergartens and nurseries are closed, can we still oblige our employee to appear at his or her workplace?

No. In such a case, the rule is that the employee is exempt from the obligation to be available and to work. This situation constitutes one that deserves special treatment on grounds of a personal, family or unavoidable cause. During this period, the employee is exempt from the obligation to work. In such cases, the employee is entitled to report his or her absence but must prove the facts justifying this. It is important that the employee is not entitled to remuneration in this case. The employer may undertake to pay the minimal health insurance contribution (HUF 7,710 per month) for this period to ensure that the employee remains entitled to health care.

Can we do something if our employees do not comply with our measures?

Yes. For example, if we decided that the employee cannot enter the usual place of work or must do his work at home, then this constitutes an order of the employer that the employee must follow. Failure to do so may result in disciplinary measures or, in extreme cases, termination of employment.

What can we do?

Prepare an action plan on how to deal with the emergency situation at work. An important part of this is to inform our employees in detail about the current situation and our expectations. In addition, of course, providing disinfectants and requiring their increased use, introducing enhanced checks and related restrictions on those entering our premises, reviewing the necessity of, limiting, or even cancelling events, client meetings and business travels are good ways to prevent the spread of the virus. To this end, personal data (even of visitors) may be processed. It is important for us to keep track of any new developments and to act as quickly as possible following a level-headed assessment and consideration of the situations that emerge.

We will update you on all significant changes on this page.