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IPtech and the impacts about Covid-19

06/04/2020

Covid-19: Notice of dealine suspension by the BPTO and other measures

The Brazilian Patent and Trademark Office (BPTO) published the following notices in the Electronic Official Bulletin No. 2657, of March 17, 2020:

Due to the coronavirus (COVID-19) pandemic outbreak, deadlines are temporarily suspended from March 16, 2020 to April 14, 2020. In addition, the Office authorized remote working for public officers and announced that face-to-face services are not available as of March 16, 2020.

In regards to the Madrid Protocol in Brazil, the implementation of the registration of (a) multiclass trademarks; and (b) co-owned trademarks was postponed without further notice. In turn, the division of trademark applications and registrations is expected to be fully operating as of September 14, 2020. 

We will continue to provide legal updates as needed to our clients and colleagues worldwide, and wish you to stay healthy and safe.

Data Privacy

1. Can an employer lawfully conduct temperature checks of employees and visitors in its premises?

Depends.

  • Under Brazilian labor law, any employer is required to maintain a safe and healthy workplace environment for its employees. Given the COVID-19 pandemic, and considering that the virus spreads quickly and could endanger the health of employees and put at risk the life of individuals, especially those in risk groups, employers are required to take reasonable precautions in the workplace.
  • Furthermore, Law No. 13,979/20 defines measures to face the “public health emergency” caused by Covid-19, and establishes that every person (and in Brazil this includes both individuals and legal entities) must cooperate with sanitary authorities by immediately reporting cases of possible contact with “coronavirus infectious agents” and circulation in areas considered risk areas for disseminating coronavirus.
  • In such circumstances, conducting temperature checks could be justified by the employer’s obligations to keep the work environment healthy for all employees and to communicate any risks to authorities.
  • However, employees’ or others’ temperatures would constitute sensitive personal data, according to the Brazilian Data Protection Law –  processing of sensitive data is subject to stricter requirements than the processing of other types of personal data. In this context, relevant legal bases to process sensitive personal data are consent, compliance with a legal or regulatory obligation, and to protect the life and physical integrity of the data subject and third parties. Notwithstanding, the processing of sensitive data must be proportionate and account for the individual rights and freedoms of data subject.
  • Given the range of health information that consistently tracking employees’ temperatures could reveal, we believe that mandatory temperature checks of employees would most likely be considered disproportionate and, therefore, a breach of Brazilian Data Protection Law.
  • On the other hand, the new Brazilian Data Protection Law has not entered into force yet – it will be effective as of August 2020, when (hopefully) the risk scenario will be different. In any event, in light of the increasing awareness of the Data Protection Law by individuals and, especially, authorities, we recommend that companies adopt an approach that is consistent with the new Data Protection Law.
  • One alternative for employers would be to obtain employee consent. For data protection purposes, consent must be free, informed and unequivocal. In most instances, in an employment relationship the consent is usually deemed invalid. However, we believe that employers could seek a valid consent of employees given the circumstances provided certain precautions are carefully put in place.
  • For that purpose, the employer must provide employees with complete information about the use of the data, the purpose of processing and the possibility that employee can withhold consent, and revoke consent any time. It is also important to inform the employee of the consequences of withholding consent. To improve the chances that the consent will be valid in this case, the employee must be clearly informed that there will be no retaliation if she/he does not wish to undergo temperature checks, nor any adverse consequences to the person’s career. However, given the employer’s obligation to maintain a safe workplace, from a privacy perspective the employer could establish that the consequence of the employee withholding consent to the temperature check would be that employer may require the employee to work remotely or put the employee on a paid leave until the employee presents a statement from a healthcare professional that the current health status of employee does not present risk of COVID-19 dissemination in the workplace or until the COVID-19 outbreak is more contained. Employers willing to adopt such measure should also have such approach reviewed from a Brazilian labor law perspective.
  • In any event, employers would still need to conduct temperature checks in a compliant and sensitive way, avoiding embarrassment for those who are identified as having higher temperatures, providing a privacy notice to explain what will happen with the temperature data, having a clear retention policy with a short retention period (a retention period of longer than 30 days would seem disproportionate), limiting those who have access to temperature check information, and handling it safely and securely. Also, any temperature check should be conducted only by a healthcare professional and, to mitigate exposure, such healthcare professional should not disclose temperatures per se, but only notify the employer if there is a concern with a particular employee/visitor and prohibit such employee/visitor from entering the workplace environment.

2. Can an employer require employees to inform HR / their line manager if their temperature rises above the normal threshold?

Yes.

  • Requiring employees to do this is less intrusive than forcing all employees to conduct temperature checks, and is not dissimilar to employees self-certifying to their line manager that they are unwell.
  • In the context of a major outbreak of COVID-19 this is more likely to be considered proportionate in the circumstances, especially considering the employer’s legal obligations to maintain a safe workplace for all employees and to report cases of possible contact with “coronavirus infectious agents” and circulation in areas considered risk areas for disseminating coronavirus.

3. Can an employer require employees (and visitors to its premises) to complete a declaration / self-assessment as to whether they have or have plans to travel to any of the high risk areas as designated by the WHO/ local government, or whether they have been in close contact with someone who has been positively tested for COVID-19?

  • Yes, assuming information is limited to actual recent / planned travel, and actual cases of COVID-19. Our view is that this could reasonably be deemed to be proportionate and justified on the basis of: (i)  the employer’s balanced legitimate interests to ensure health and safety at work in the context of a major COVID-19 outbreak in Brazil, (2) and in light of the obligation to report cases of possible contact with “coronavirus infectious agents” and circulation in areas considered risk areas for disseminating coronavirus.

4. Have data privacy regulators issued any guidance either permitting or restricting the collection of personal data for purposes of identifying COVID-19 cases?

  • No.  As mentioned above, Brazilian Data Protection Law has not entered into force yet (effective as of August 2020). The Brazilian Data Protection Authority is not operational yet and it, or any other authority, has not issued any regulation or guidance to date.

5. Is an employer permitted to disclose the identity of any worker who is confirmed to have COVID-19, to other co-workers?

No, generally speaking.

  • Informing employees or others about the identity of any specific employee who is confirmed to have COVID-19 would involve disclosing special category personal data, and so has the potential to be unlawful both from a data privacy perspective and employment law perspective (since it may carry a certain stigma, cause embarrassment etc.).
  • It will generally not be necessary to disclose an individual’s identity, even where implementing appropriate precautions. If you have assessed that a certain group of people are at high-risk of infection and should self-isolate, you can do this without disclosing the particular employee’s identity.

This involves a balancing act, and where an infected employee’s identity can be kept anonymous, that is preferable.

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