Data Protection: Workplace, Health and Safety

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Data Protection Workplace, Health and Safety
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Employers responsibilities

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

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Workplace privacy

• Acceptance that employees have a right to privacy
  even in the workplace.
• This right must be balanced with employers
  legitimate interests.
• Any limitation of the employees right to privacy
  should be proportionate to the likely damage to
  the employers 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

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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

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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

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Purpose for collection

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

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Security

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

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Necessary/Proportionate

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

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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

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Drug testing -Justification

• Health and safety only
• Post incident generally
• Drugs and alcohol testing

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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

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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)

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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

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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

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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

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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

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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