How do you prevent MHFA from handling situations that are for qualified individuals such as their GP or EAP?

As the coronavirus outbreak continues to develop, we have seen many countries begin to implement emergency procedures and legislation in an attempt to control the spread of the disease.

These have included bans on gatherings and public events, closures of shops, bars, restaurants and public spaces, and full lockdowns which restrict all but key workers to their homes except in certain limited circumstances.

This has a direct impact on businesses and their ability to operate. So what happens if a contract becomes impossible to perform because of emergency legislation?

For example:

• If you are a hospitality business, you have agreed to host an event, and gatherings are prohibited
• If you are a manufacturer or service provider, and your staff are required to remain at home, making performance of the contract impossible

You also need to consider other aspects of data protection.

Be proportionate – only gather and use Covid-19 data where you need to.

Keep data to a minimum – you shouldn’t gather more data than you need. You need to know someone has Covid-19 but you don’t need to know all their symptoms. Data minimisation also applies to who gets access to the data. It’s unlikely that a spreadsheet, accessible to everyone updating them on the health status of all employees, would be appropriate. Data should be shared on a need to know basis. You need to balance the privacy of individuals against your duty of care to be responsible with regards to the data of your employees, visitors, customers and suppliers.

Keep it up to date – make sure you update data. People’s health status will change and if you keep a record of this, you need to  make sure it is accurate and up to date (although this doesn’t mean you should batter individuals with constant requests for updates on health status. Again, be proportionate).

Identify individuals only when you need to – although you will need to know who has Covid-19, that doesn’t mean you need to tell everyone in the organisation. As soon as you can, you should remove personal data from any information you gather. For example, you might want to update employees on the health status of their fellow employees but you probably don’t need to name individuals and even if you feel it is necessary, you should keep the information you provide to a minimum. Removing personal identifiers in a document is also a good data security technique.

Keep the Covid-19 health data secure – Covid-19 data will be special category data and deemed high risk. This means that if you have a breach of this data you will need to notify it to the ICO. A breach could happen by someone losing a print-out of the names of Covid-19 employees, customers or visitors. It could also happen if you set access rights to lists of Covid-19 sufferers open to more people than need to know the information. The risk of ICO enforcement action increases with the potential harm the disclosure could cause. Although the ICO has indicated that it will be understanding about the impact of Covid-19 on normal operations, this doesn’t mean that they will not prosecute you if the breach is sufficiently serious.

Destroy the data once you don’t need it – Finally, of course, make sure that you delete data at the end of your needs. This might last longer than the pandemic, for example if you have an insurance claim or ongoing litigation. If you do need to keep it, consider whether or not you can delete some of the data to minimise what you hold.

Yes, you can ask to see any information/documentation sent to an employee informing them that they should self-isolate.

To qualify for a grant under the scheme you must pay your furloughed staff the wages you are claiming for. Failure to do so may result in a HMRC investigation and/or claims from furloughed staff for unlawful deductions from wages and possibly constructive dismissal claims.

Normal benefits including non-monetary benefits should continue during furlough unless the individual has agreed in writing to reduce or remove a benefit during this time.

Employers are expected to apply for one or more of the financial support schemes available to be able to continue to pay staff.

If a business has been provided with a loan from 23 March on commercial terms, providing the borrower meets the CBILS eligibility criteria, lenders have been asked to bring these facilities onto CBILS wherever possible (e.g. where the lender is accredited to offer the same facility through CBILS) and changes retrospectively applied as necessary. Please contact us if this applies to you and we can review facilities and advise upon the potential changes that may be made retrospectively to the benefit of the business.