The Monegasque DPA requested that the temperature of employees not be taken except in specific cases requiring it.
In the Principality, temperature taking is expressly provided for within the sole framework of construction activities. The organisation of "temperature-taking measures at the entrance to premises and building sites" is part of the general access control instructions for employees as well as persons intervening in the company and on the building site (Amended Annex of 20 April 2020 to Ministerial Order n° 2020-335 of 23 April 2020 on health safety measures for construction activities during the COVID-19 coronavirus epidemic).
For other activities, temperature taking is not part of the sanitary measures (general and specific depending on the activity concerned) to be put in place (Ministerial Decision of 14 May 2020 amending the Ministerial Decision of 28 April 2020 on the introduction of exceptional measures within the framework of the gradual resumption of activities to combat the COVID-19 epidemic).
The Monegasque DPA recalled the sensitive nature of health-related data, and that "the use of temperature taking must correspond to a particular requirement and must be done in a proportionate manner, in accordance with the rights of individuals".
For "specific cases requiring it", the CCIN has listed the "criteria" applicable to taking employees' temperatures:
- Establishment of a written procedure specifying the temperature threshold above which access to the site is not authorized;
- Communication of this procedure to the employee representative bodies and the Labour Inspectorate;
- Prior information of employees on this procedure;
- Possibility for the employee to refuse to submit to temperature taking, without consequence, the employer can then accept the employee in the workplace under the conditions that he sets, or he can send him home without legal or financial consequences (salary maintained);
- Confidentiality applicable to temperature taking and the possibility of refusal;
- No automated system for collecting the temperature of data subjects should be deployed before the data subjects have been able to consent or refuse to having their temperature taken.
Regarding shops’ customers, the Monegasque DPA requested access not to be conditioned on the taking of temperature, stating that "no valid consent can therefore exist".
Camera detection of facemask wearing
The use of a system that detects the wearing of facemasks by camera is possible, but according to the Monegasque DPA, it should be put in place only under the following conditions:
- It should only be used in places where the wearing of facemasks is mandatory, and where a less intrusive system can hardly be implemented (human surveillance);
- At no time, it shall collect a template individualising the faces of the persons concerned.
Diagnostic tests for Covid-19
The Monegasque DPA stated that employers “are not allowed to carry out tests for the purposes of determining whether their employees, or visitors, are positive for COVID-19”.
On May 18th, the State of Monaco launched a campaign of serological tests referred to as “Rapid Diagnostic Orientation Tests” (Tests Rapides d’Orientation Diagnostique, in brief “TROD”), which detects the presence of anti-SARS-COV-2 antibodies (of IgM and IgG classes) from a drop of blood, to define the person’s immune status.
The test, voluntary and free of charge, is intended for Monegasque residents (including children over 5 years of age, and at a later date, children under 5 years of age in the presence of a pediatrician), as well as employees of the Monegasque companies (a large part of which resides in France or Italy).
The results of the test shall be communicated immediately to the person concerned. In the event of a positive result, a doctor must propose an additional protocol to be followed, while the treating doctor of the person concerned will be informed, in compliance with medical confidentiality.
The results will also be used for epidemiological research and to guide the public health policy of the Principality of Monaco.
Online reference material:
Amended Annex of April 20th, 2020, to Ministerial Order n° 2020-335 of 23 April 2020 on health safety measures for construction activities during the COVID-19 coronavirus epidemic, available at: service-public-entreprises.gouv.mc/Covid-19/Informations-pratiques-Covid-19/Levee-progressive-du-confinement/Covid19-Mesures-de-securite-sanitaire-pour-les-activites-de-construction
Ministerial Decision of May 14th, 2020, amending the Ministerial Decision of 28 April 2020 on the introduction of exceptional measures within the framework of the gradual resumption of activities to combat the COVID-19 epidemic, available at:
“Position of the Monegasque DPA (CCIN) with regard to sanitary measures in the context of the gradual resumption of activities following the end of containment”, May 2020, available at: www.ccin.mc/images/Covid-19-reprise-dactivit-mesures-sanitaires-et-droits-des-personnes-VV.pdf
“All about Diagnostic Tests”, as updated May 18th 2020, available at: covid19.mc/covid-19-informations-gouvernement-princier/tout-sur-les-tests-diagnostics/
Article provided by: Thomas Giaccardi and Anne Robert (Giaccardi & Brezzo Avocats, Monaco)
Dr. Tobias Höllwarth (Managing Director INPLP)