Data Protection: Workplace, Health and Safety

Employers’ responsibilities Employer obliged to provide safe place of work. Health and Safety Act 2004 Monitoring ( , cctv?) –in context of risk- health & safety abuses, instances of bullying. Must be necessary, proportionate and transparent

Workplace privacy Acceptance that employees have a right to privacy – even in the workplace. This right must be balanced with employer’s legitimate interests. Any limitation of the employees right to privacy should be proportionate to the likely damage to the employer’s legitimate interests. Before any monitoring takes place, employees should be notified of this and its purpose. Ideally, a policy should be available. Opinions given in confidence or in the expectation of confidence may not be granted a subject access request but this demands a high threshold of proof from the DPC

Health-Workplace issues Health is sensitive data in data protection law Health and safety, prevent discrimination, satisfy legal obligations, employment requirements or explicit consent given Consent to be freely given

Access to health information Direct access by the data subject … … subject to consultation with his/her GP (or some other health professional in employment context) … … to ensure that access would not be “likely to cause serious harm to the physical or mental health of the data subject” S.I. No. 82/1989

Purpose for collection Review Current practices Data to be adequate, relevant and not excessive Impact assessment on why you need this data

Security Need to know and necessary to establish fitness to work Anonymised information to safety representatives in general Secure from other personnel records

Necessary/Proportionate Only collect what is necessary Fitness to work rather than general health details Restricted access Proportionate to risk

Good practice in general Clear policy and workers are aware of same Collect information when appropriate- appointment, health and safety programme Covert obtaining contrary to DP Acts generally

Drug testing -Justification Health and safety only Post incident generally Drugs and alcohol testing

Health and Safety Act Health and Safety Act 2004 Duties of employer and employees, Safety Statement, risk assessment etc. Section 13 –employee to take reasonable care to protect safety, ensure not under influence of an intoxicant to the extent that endangers safety 13c- if reasonably required by employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner Implies unobtrusiveness. Only safety sensitive areas. Must operate alongside requirements of Data Protection Acts Expect privacy Clear purpose for collection Aware of the extent and why

Drugs-Minimum information in drug tests Convince or indeed prove why it is significantly better than other less intrusive means to be proven Use the least intrusive testing systems Tell staff what drugs they are being tested for Limit to substances and extent of exposure that will have a significant bearing on the purpose of the test Programmes for support and awareness to be set up – to enable safety objectives to be achieved without testing. (Employee Assistance Programmes)

Drug testing-Fair procedures Be upfront from the start If its random, its random in reality and practice If other criteria are being used workers should be aware of this also Protect confidentiality/medical secrecy

Drug testing-Critical areas All workers being tested is rarely justified Define the critical areas What are the criteria for ‘critical’ Sectoral  Health Record (food preparation)  Criminal Conviction (Dept of Justice)  Driving Conviction (Delivery)  Child Care Workers  Airline pilots

Drug testing -Awareness Testing Policy clearly stated Staff handbook –encourage responsibility in safety critical areas Consumption of drugs (including medicines) or alcohol risks weakening faculties Consequences of breaches to be explained Do not conduct testing on samples collected without the knowledge of the worker

Drug Testing procedures Technical quality to be paramount Rigorous integrity and quality control procedures Professional competence Duplicate samples independently analysed when necessary Tests may not be always accurate and have an appropriate disputes handling procedure Correct inaccurate data on personnel files Provide for counselling if necessary

Genetic Testing Disability Act 2005 (Part 4):  Informed consent of data subject required  Prohibited in relation to insurance policies, pensions, and mortgages  Subject to DPC prior approval in relation to employment