Requirements mandated by law or any official guidance. Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
All businesses and organisations in the private and public, cooperative and social sectors, whilst employers that are responsible for coordinating Occupational Safety and Health Services under the legal framework promoting occupational safety and health, must follow the guidance issued by the DGS and organise appropriate contingency plans relating to SARS-CoV-2 infection and procedures to be followed in case of employees presenting symptoms of COVID-19 at the workplace.
The current pandemic has increased employer’s occupational safety and health (‘OSH’) obligations.
Requirement for employers to adopt preventive measures deriving from the general duty to protect employees’ safety and health:
- Implementation of a contingency plan
All businesses and organisations in the private and public, cooperative and social sectors are required to put in place a contingency plan, in accordance with DGS Guidance 006/2020. The gradual deconfinement’s phases, implying the gradual return to face-to-face work, involve specific protection measures – along with the guidelines that have been issued for specific sectors – which should be reflected by employers in the contingency plans previously drawn up (the National Occupational Health Programme Coordination Team has issued guidelines of great practical use). Also particularly useful are the guidelines issued by the European Agency for Safety at Work, specifically the Guidelines on preventive measures for a safe and healthy return to the workplace.
Preparation of the contingency plan must involve OSH services and employee representatives or, if non-existent, the employees themselves and must include the contents indicated by the health authorities’ guidelines – namely, the above referred DGS Guidance 006/2020.
The contingency plan must have been communicated to all employees and affixed at the workplace, where it may be visible and accessible to all.
OSH Services shall play an active role in responding to the pandemic within companies, in particular: (i) ensuring employees are informed and trained; (ii) defining additional prevention measures which prove necessary; (iii) ensuring medical surveillance; and (iv) identifying any cases of infection.
Employees’ failure to comply with the contingency plan could constitute grounds for disciplinary action, without prejudice general liability under the law.
The DGS also issued rules applicable to employers that engage in specific activities, as is the case, for example, of:
- wholesale distributors and manufacturers of medicinal products for human use;
- restaurants, catering and similar establishments;
- cultural event premises;
- shops and other places with direct servicing to the public (customers);
- leisure resorts;
Other standards and guidelines are being issued at the pace of activities being resumed, according to the deconfinement plan applicable in each case. In most cases these are guidelines that are not limited to employee health protection ( ).
On April 30, through Cabinet Decision 33-C/2020, the Government approved the strategy towards gradual deconfinement plan within the scope of the pandemic combat, defining a projected timeline for this strategy comprising 2-week block periods between each deconfinement stage (for assessing the impacts). All measures must and are being accompanied by specific operating conditions which, in many cases, involve the use of PPE, rules on social distancing in addition to the general conditions for the lifting of confinement measures, such as the availability in the market of protective masks and disinfectant gel, regular hygiene of spaces, among others. In many cases these are reflected in safety measures to be implemented by the entities, whilst employers, as Occupational Safety and Health (SST) rules.
- Use of Personal Protective Equipment (PPE) by specific professionals
On 3 April 2020 the DGS issued initial guidance on the use of PPE by groups of professionals, other than health professionals, defining a group of professionals for whom the use of PPEoutside health institutions is recommended, as well as professional groups with indication for use of face masks. With the gradual deconfinement measures the mandatory use of facial mask is being extended to a number of locations (e.g. shops, public transportation).
The Portuguese data protection supervisory authority (the ‘CNPD’) issued Guidelines on the collection and processing of employee health and private life data in the context of COVID-19 pandemic.
In summary, the guidelines indicate that in the context of the adoption of measures to prevent COVID-19 staff infection employers themselves must, neither proceed to staff temperature measuring or recording, nor to collecting other data concerning employee health (e.g., requiring staff to complete questionnaires on health condition) or possible situations or staff risk behaviour (which may indicate infection risk of the new coronavirus).
In a somewhat contradictory direction, the Government passed a rule on this matter (new article 13-C of Decree-Law 10-A/2020, introduced by Decree-Law 20/2020) expressly providing that “in the current context of COVID-19 pandemic, and exclusively for reasons of protection of own and others health, employee’s body temperature may be controlled for the purposes of access and permanence in the workplace”. Recording temperatures measured is only admitted with the explicit permission of the employee in question (in a reference that seems to call for the employee’s consent to this data processing operation that has raised strong criticism in view of the unbalance that typically occurs in the employer/employee relationship that makes it difficult for real freedom of consent to be guaranteed.
If the measured temperature is higher than normal body temperature – although the legal provision does not specifically indicate what this should be – the employer is allowed to deny the employee access to the workplace. Nothing else is regulated on the matter, namely nothing on how the resulting lack of work is to be understood or treated and this has, therefore, been a legal measure that has been greatly criticised.