As mining companies gear up for gradual or full restarts at mine sites around the world, they’ll need to pay attention to local and national policies governing the screening and testing of employees — what PwC calls a ‘regulatory obstacle course’ — to avoid violating workers’ rights to privacy.

Miners are used to breaking new ground, whether as part of the exploration process or executing a pit-wall pushback, but the COVID-19 pandemic has thrust the industry deep into hostile and unforgiving territory where the wrong decisions can lead to calamitous consequences, in both human and business terms.

Working to maintain the necessities of business survival in the face of incomplete medical knowledge about
the specific nature of COVID-19’s symptoms, disease progression and standard treatment protocols — plus the absence of plentiful and reliable testing supplies — mining companies have been scrambling since early March to piece together strategies that ensure employee safety, preserve operational infrastructure and comply with government regulations in a tense environment complicated by workers’ apprehensions, cultural distinctions and political pressure.

Few companies were initially prepared to deal with the pandemic. Most have had to hastily implement ad hoc methods for assessing and identifying employees that carried or had possibly been exposed to the coronavirus, and for containing the spread of the virus within the workforce and nearby communities. Some of these procedures may also have inadvertently violated employees’ rights to privacy. As business consulting company PwC noted in a recent advisory bulletin, “A regulatory obstacle course has already emerged, with governments around the world issuing more than 60 directives regarding protecting data privacy while responding to the COVID-19 pandemic.”a comprehensive review of these directives and identifying the key components that regulators will look for in future pandemic-response plans, PwC suggested companies consider a three-phase approach for navigating the course: mobilization, stabilization and strategizing. For the mobilization phase, PwC recommends:

• Narrowly tailoring health-screening questionnaires;

• Designating authorized individuals to handle the questionnaires;

• Informing screened employees of their rights; and

• Not disclosing names of positive-testing individuals outside the response team.

For companies entering the stabilization phase, PwC poses the question: “To what extent can employers systematically collect information about employee morale or monitor their productivity?” The answer is that, as with many things, it depends mostly on the details of the monitoring and where it occurs. For example, employers in most Middle Eastern countries, as well as Brazil, China, Cyprus, Singapore and the U.S., can require employees to allow their productivity to be monitored, while in Russia, voluntary participation is permissible.

Employers in Colombia and the U.S. can require employees to take a mandatory, personally identifiable survey about their general level of energy or confidence in the company. In contrast, those in Australia, Brazil, Canada, Czech Republic and Germany must take a voluntary approach to identifiable surveys. In France, Hong Kong, India, Italy, South Africa and the UK, participation must be both voluntary and anonymous.

Companies will reach a point where they need to strategize about ways to allow workers and visitors to return to the site without endangering anyone. Again, it depends on location as to what strategies might work and what isn’t permitted. The study noted that “Some companies are considering whether to require a ‘health passport’ — a certification from a physician or other healthcare source that the holder has tested negative to COVID-19 or has not recently presented symptoms — to allow access to company facilities.

“This approach may work in countries such as Singapore, for example, where its Personal Data Protection Act allows employers to collect personal data through various means — and without employee consent — during public emergencies that threaten the life, health or safety of individuals,” the report stated.

The same goes for instituting temperature checks at entrances to their facilities once they reopen, according to PwC. Multinationals could face difficulty adopting one approach globally. In China, the law requires that employers report on confirmed and suspected infections of a contagious disease to Chinese health authorities in a timely manner. Accordingly, employers are required to regularly and frequently conduct temperature checks on employees and workplace visitors, and they also can require employees to report any health issues to a team designated to handle workplace safety.

In the U.S., federal guidance from the Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA) permits employers to conduct temperature checks for use during a widespread pandemic before allowing them to enter a work site. Certain states and counties also have implemented orders or guidance that urges or requires temperature checks to be performed before workers are allowed to enter a site. International law firm WilmerHale published a client advisory aimed at pointing out best practices for conducting temperature screening. Employers should:

• Communicate clearly in advance with their workforces regarding temperature checks and related implications (e.g., being sent home).

• Set a temperature screening threshold over which employees will not be permitted to enter the workplace. The CDC considers a person to have a fever when he or she has a measured temperature of at least 100.4°F; many employers have adopted screening thresholds in the 100°F-100.4°F range.

• Seek to facilitate testing in the least invasive way possible, including by attempting to procure devices that can register temperature without exposure to bodily fluids (e.g., no-contact thermometers).

• Appoint someone with proper training — ideally an on-site medical staff person or other medical professional if possible — to facilitate or administer on-site temperature checks.

• Maintain social distancing (e.g., by establishing multiple temperature check stations at large facilities to minimize crowding), clean and disinfect medical equipment, and take other COVID-19 related precautions.

The law firm advised that in light of the many complexities associated with taking employee temperatures, employers should carefully review the terms of local and state orders recommending or requiring temperature checks.  If an employer elects to administer the tests, it should consider engaging a third-party healthcare vendor or other medical professional to advise on, and potentially run, such a program.

PwC also pointed out that it’s likely mobile device app-based contact tracing, offering a way to find and warn people they may have been exposed to the coronavirus, will become more prevalent — if accepted by workers. These apps may be provided or administered through local health agencies or in some cases by employers or even cell phone product and service providers. Management considerations that should be regarded as mandatory for successful use of these apps include:

Getting employee buy-in. Workers need to be sold on the benefits that tracing will bring, even though use of the app may require them to get tested or retested, self-report the results and possibly be sent home to quarantine themselves.

PwC said employers may not need to take a mandatory approach to achieve that objective if they can win over employees with clear and frequent communications about how it all works, appealing to the worker’s interest in helping to make the workplace safe and productive for everyone.

Keeping geolocation data anonymous and encrypted. Employees should be able to trust that employers, coworkers, neighbors, and hackers can’t trace their whereabouts while using an app.

Not feeding data to government authorities. Exercise all available rights to keep the workforce data confidential in order to build and sustain employee trust.

Making everything temporary. The app and all of the data associated with it should be deleted once a company has returned to a predefined and communicated state of acceptable risk of contagion.