Category: Data Protection
27. October 2021
As COVID-19 vaccination campaigns are well under way, employers are faced with the question of whether they are legally permitted to ask employees about their COVID-19 related information (vaccinated, recovered) and, if so, how that information may be used.
COVID-19 related information, such as vaccination status, if an employee has recovered from an infection or whether an employee is infected with COVID-19, is considered health data. This type of data is considered particularly sensitive data in most data protection regimes, which may only be processed under strict conditions. Art. 9 (1) General Data Protection Regulation (GDPR)(EU), Art. 9 (1) UK-GDPR (UK), Art. 5 (II) General Personal Data Protection Law (LGPD) (Brazil), para. 1798.140. (b) California Consumer Privacy Act of 2018 (CCPA) (California) all consider health-related information as sensitive personal data.
The following discusses whether employers in various non-EEA countries are permitted to process COVID-19-related information about their employees.
Brazil: According to the Labor Code (CLT), employers in Brazil have the right to require their employees to be vaccinated. This is because the employer is responsible for the health and safety of its employees in the workplace and therefore has the right to take reasonable measures to ensure health and safety in the workplace. Since employers can require their employees to be vaccinated, they can also require proof of vaccination. Because LGPD considers this information to be sensitive personal data, special care must be taken in processing it.
Hong-Kong: An employer may require its employees to disclose their immunization status. Under the Occupational Safety and Health Ordinance (OSHO), employers are required to take all reasonably practicable steps to ensure the safety and health of all their employees in the workplace. The vaccine may be considered as part of COVID-19 risk assessments as a possible additional measure to mitigate the risks associated with contracting the virus in the workplace. The requirement for vaccination must be lawful and reasonable. Employers may decide, following such a risk assessment, that a vaccinated workforce is necessary and appropriate to mitigate risk. If the employer does so, it must comply with the Personal Data Privacy Ordinance (PDPO). Among other things, the PDPO requires that the collection of data must be necessary for the purpose for which it is collected and must not be kept longer than is necessary for that purpose. Under the PDPO, before collecting data, the employer must inform the employee whether the collection is mandatory or voluntary for the employee and, if mandatory, what the consequences are for the employee if he or she does not provide the data.
UK: An employer may inquire about an employee’s vaccination status or conduct tests on employees if it is proportionate and necessary for the employer to comply with its legal obligation to ensure health and safety at work. The employer must be able to demonstrate that the processing of this information is necessary for compliance with its health and safety obligations under employment law, Art. 9 (2) (b) UK GDPR. He must also conduct a data protection impact assessment to evaluate the necessity of the data collection and balance that necessity against the employee’s right to privacy. A policy for the collection of such data and its retention is also required. The information must be retained only as long as it is needed. There must also be no risk of unlawful discrimination, e.g. the reason for refusing vaccination could be protected from discrimination by the Equality Act 2010.
USA: The Equal Employment Opportunity Commission (EEOC) published a document in which it suggests that an employer may implement a vaccination policy as a condition of physically returning to the workplace. Before implementing a vaccination requirement, an employer should consider whether there are any relevant state laws or regulations that might change anything about the requirements for such a provision. If an employer asks an unvaccinated employee questions about why he or she has not been vaccinated or does not want to be vaccinated, such questions may elicit information about a disability and therefore would fall under the standard for disability-related questions. Because immunization records are personally identifiable information about an employee, the information must be recorded, handled, and stored as confidential medical information. If an employer self-administers the vaccine to its employees or contracts a third party to do so, the employer must demonstrate that the screening questions are “job-related and consistent with business necessity.”
As COVID-19 vaccination campaigns are well under way, employers are faced with the question of whether they are legally permitted to ask employees about their COVID-19 related information (vaccinated, recovered, test result) and, if so, how that information may be used.
COVID-19 related information, such as vaccination status, whether an employee has recovered from an infection or whether an employee is infected with COVID-19, is considered health data. This type of data is considered particularly sensitive data in most data protection regimes, which may only be processed under strict conditions. Art. 9 (1) General Data Protection Regulation (GDPR)(EU), Art. 9 (1) UK-GDPR (UK), Art. 5 (II) General Personal Data Protection Law (LGPD) (Brazil), para. 1798.140. (b) California Consumer Privacy Act of 2018 (CCPA) (California) all consider health-related information as sensitive personal data. However, the question of whether COVID-19-related data may be processed by an employer is evaluated differently, even in the context of the same data protection regime such as the GDPR.
The following discusses whether employers in various European Economic Area (EEA) countries are permitted to process COVID-19-related information about their employees.
Austria: The processing of health data in context of the COVID-19 pandemic can be based on Article 9 (2) (b) of the GDPR in conjunction with the relevant provisions on the duty of care (processing for the purpose of fulfilling obligations under labor and social law). Under Austrian labor law, every employer has a duty of care towards its employees, which also includes the exclusion of health hazards in the workplace. However, this only entitles the employer to ask the employee in general terms whether he or she has been examined, is healthy or has been vaccinated. Therefore, if the legislator provides for two other equivalent methods to prove a low epidemiological risk in addition to vaccination, the current view of the data protection authority is that specific questioning about vaccination status is not possible from a data protection perspective. An exception to this is only to be seen in the case of an explicit (voluntary) consent of the employee (Art. 9 (2) a) GDPR), but a voluntary consent is not to be assumed as a rule due to the dependency relationship of the employee.
As of November, employees will be obliged to prove whether they have been vaccinated, recovered from a COVID-19 infection or recently tested negative if they have physical contact with others in enclosed spaces, such as the office.
Belgium: In Belgium, there is no legal basis for the processing of vaccination information of employees by their employer. Article 9 (1) GDPR prohibits the processing of health data unless an explicit exception under Article 9 (2) GDPR applies. Such an exception may be a legal provision or the free and explicit consent of the data subject. Such a legal provision is missing and in the relationship between employee and employer, the employee’s consent is rarely free, as an employee may be under great pressure to give consent. The Belgian data protection authority also explicitly denies the employer’s right to ask.
Finland: The processing of an employee’s health data is only permitted if it is directly necessary for the employment relationship. The employer must carefully verify whether this necessity exists. It is not possible to deviate from this necessity by obtaining the employee’s consent. The employer may process an employee’s health data if this is necessary for the payment of sick pay or comparable health-related benefits or to establish a justified reason for the employee’s absence. The processing of health data is also permitted if an employee expressly requests that his or her ability to work be determined on the basis of health data. In addition, the employer is entitled to process an employee’s health data in situations expressly provided for elsewhere in the Act. The employer may request from occupational health care statistical data on the vaccination protection of its employees.
France: Since July 21st, 2021, a “health passport” is mandatory for recreational and cultural facilities frequented by more than 50 people, such as theaters, cinemas, concerts, festivals, sports venues. The health passport is a digital or paper-based record of whether a person has been vaccinated, recovered within 11 days to 6 months, or tested negative within 48 hours. There are several workplaces where vaccination has been mandatory for workers since August 30th, 2021. These include bars, restaurants, seminars, public transport for long journeys (train, bus, plane). The health passport is also mandatory for the staff and visitors of hospitals, homes for the elderly, retirement homes, but not for patients who have a medical emergency. Also, visitors and staff of department stores and shopping malls need to present a health pass in case the prefect of the department decided this necessary. In these cases, the employer is obliged to check if his employees meet their legal obligations. However, the employer should not copy and store the vaccination certificates, but only store the information whether an employee has been vaccinated. Employers who do not fall into these categories are not allowed to process their employees’ vaccination data. In these cases, only occupational health services may process this type of information, but the employer may not obtain this information under any circumstances. At most, he may obtain a medical opinion on whether an employee is fit for work.
Germany: Processing of COVID-19 related information is generally only permitted for employers in certain sectors. Certain employers named in the law, such as in §§ 23a, 23 Infection Protection Act (IfSG), employers in certain health care facilities (e.g. hospitals, doctors’ offices, rescue services, ) and § 36 (3) IfSG, such as day care centers, outpatient care services, schools, homeless shelters or correctional facilities, are allowed to process the vaccination status of their employees. Other employers are generally not permitted to inquire about the vaccination status of employees. If allowed to process their employee’s vaccination status, employers should not copy the certificates but only check whether an employee is vaccinated. Although there has been an ongoing discussion in the federal government for several weeks about introducing a legal basis that would allow all employers to administer vaccination information. From November 2021, employers must check whether an employee who has been sanctioned with a quarantine due to a COVID-19 infection was or could have been vaccinated prior to the infection. According to Section 56 (1) sentence 4 IfSG, there is no entitlement to continued payment of remuneration for the period of quarantine if the employee could have avoided the quarantine, e.g. by taking advantage of a vaccination program. The employer must pay the compensation on behalf of the competent authority. As part of this obligation to pay in advance, the employer is also obliged to check whether the factual requirements for the granting of benefits are met. The employer is therefore obliged to obtain information on the vaccination status of its employee before paying compensation and, on this basis, to decide whether compensation can be considered in the individual case. The data protection basis for this processing activity is Section 26 (3) of the German Federal Data Protection Act (BDSG), which permits the processing of special categories of personal data – if this is necessary for the exercise of rights or the fulfillment of legal obligations arising from labor law, social security law and social protection law, and if there is no reason to assume that the data subjects’ interest in the exclusion of the processing, which is worthy of protection, outweighs this. The Data Protection Conference, an association of German data protection authorities, states that processing the vaccination status of employees on the basis of consent is only possible if the consent was given voluntarily and therefore legally effective, Section 26 (3) sentence 2 and (2) BDSG. Due to the relationship of superiority and subordination existing between employer and employee, there are regularly doubts about the voluntariness and thus the legal validity of the employees’ consent.
Italy: Since October 15, Italy has become the first country in the EEA to require all workers to present a “green passport” at the workplace. This document records whether a person has been vaccinated, recovered, or tested. A general vaccination requirement has been in effect for health care workers since May, and employees in educational institutions have been required to present the green passport since September.
Netherlands: Currently, there is no specific legislation that allows employers to process employee immunization data. Only the occupational health service and company doctors are allowed to process immunization data, for example when employees are absent or reintegrated. The Minister of Health, Welfare and Sport has announced that he will allow the health sector to determine the vaccination status of its employees. He also wants to examine whether and how this can be done in other work situations. Currently, employers can only offer voluntary testing in the workplace, but are not allowed to document the results of such tests or force
Spain: Employers are allowed to ask employees if they have been vaccinated, but only if it is proportionate and necessary for the employer to fulfill its legal obligation to ensure health and safety in the workplace. However, employees have the right to refuse to answer this question. Before entering the workplace, employees may be asked to provide a negative test or proof of vaccination if the occupational health and safety provider deems it necessary for the particular workplace.
25. October 2021
During its plenary session of October 2021, the European Data Protection Board (EDPB) adopted a final version of the Guidelines on restrictions of data subject rights under Art. 23 of the General Data Protection Regulation (GDPR) following public consultation.
The Guidelines “provide a thorough analysis of the criteria to apply restrictions, the assessments that need to be observed, how data subjects can exercise their rights after the restrictions are lifted, and the consequences of infringements of Art. 23 GDPR,” the EDPB stated in their press release.
Further, the Guidelines aim to analyze how the legislative measures setting out the restrictions need to meet the foreseeability requirement and examine the grounds for the restrictions listed by Art. 23(1) GDPR, as well as the obligations and rights which may be restricted.
These Guidelines hope to recall the conditions surrounding the use of the restrictions by the Member States in light of the Charter of Fundamental Rights of the European Union, and to guide Member States if they wish to implement restrictions under national law.
5. October 2021
On September 27, 2021, the European Data Protection Board (EDPB) announced that it has established a “Cookie Banner” taskforce in order to coordinate the complaints and corresponding responses filed with several EU data protection authorities (DPA) by the non-governmental organization None of Your Business (NOYB) in relation to website cookie banners.
In May 2021 NOYB sent over 500 draft and formal complaints to companies residing in the EU regarding the use of their cookie banners. The complaints seem to focus on the absence of a “reject all” button on most of the websites as well as the way cookie banners use deceptive design in order to get data subjects to consent to the use of non-essential cookies. Another regular complaint is the difficulty for refusing cookies, as opposed to the simple way of consenting to them.
The EDPB stated that “this taskforce was established in accordance with Art. 70 (1) (u) GDPR and aims to promote cooperation, information sharing and best practices between the DPAs”. The taskforce is meant to exchange views on legal analysis and possible infringements, provide support to activities on the national levels and streamline communication.
29. September 2021
In June 2021, the European Commission published the long-awaited new Standard Contractual Clauses (SCC) for the transfers of personal data to so-called third countries under the General Data Protection Regulation (GDPR) (please see our blog post). These new SCC modules replace the three 10-year-old SCC sets that were adopted under the EU Data Protection Directive 95/46/EC and thus could not meet the requirements of the GDPR for data transfers to third countries, nor the significant Schrems II ruling of July 16th, 2020 (please see our blog post). The transfer of data to third countries has not only recently become problematic and a focus of supervisory authorities.
As of Monday, September 27th, 2021, these new SCC must be used for new contracts entered into after September 26th, 2021, and for new processing activities that begin after September 26th, if the contract or processing activity involves the transfer of personal data to so-called inadequate third countries. These are countries outside of the European Economic Area (EEA) not deemed to have an adequate level of data protection by an adequacy decision of the European Commission.
Contracts signed before September 27th, 2021, based on the old SCC will still be considered adequate until December 27th, 2022. For these contracts, the old SCCs already signed can be maintained in the meantime as long as the processing of personal data that is the subject of the contract in question does not change. The SCC used for these contracts must be updated to the new SCC, or other data transfer mechanisms in accordance with the GDPR, by December 27th, 2022. As of that date, all SCC used as safeguards for data transfers to inadequate third countries must be the new SCC.
24. September 2021
Last month Brazil’s Chamber of Deputies approved the Federal Senate’s proposal to amend the Constitution making the protection of personal data, including in digital media, a fundamental right for all citizens. According to the proposal, the Federal Government would have exclusive competence to legislate and supervise matters in this area.
The country already has a General Law for the Protection of Personal Data (LGPD) and the National Data Protection Authority (ANPD) as a supervisory body. The deputy Orlando Silva pointed out that the proposal consolidates the regulations for the protection of personal data and justified the need to include data protection as a constitutional right as follows:
All of us here systematically use internet applications, and the management of these applications is based on the provision of personal data, which is often manipulated without each of us knowing the risks to our privacy.
The deputy Isnaldo Bulhões added:
Without a doubt the proposal is a step forward, because we have seen major scandals, major violations, and fraud that have advanced a lot in recent times with technological development in Brazil and in the world.
A peculiarity of the amendment adopted by the Plenum is the deletion of the provision to make the ANPD an independent body, which would be part of the indirect federal public administration and subject to a special autonomous regulation. It was argued that the autonomy of the ANPD is not in question, but a constitutional regulation in this regard has never been adopted for any other agency.
For final approval the deputies’ adjustments require the proposal to return to the Federal Senate.
23. September 2021
On Monday, 20 September 2021 the UK Ministry of Defence launched an investigation into a recent data breach. The breach has affected more than 250 Afghan interpreters who have cooperated with Western forces in Afghanistan and who have applied for relocation to the UK. The Ministry sent an e-mail to these Afghan individuals who are still in Afghanistan and are reportedly eligible for relocation. The e-mail included all e-mail addresses, names, and some associated profile pictures in copy (“cc”) instead of blind copy (“bcc”), thus exposing the personal information to all recipients. It was reported that some Afghans have sent reply e-mails to all recipients in the mailing list, even sharing details about their current personal situation.
The following Tuesday, Britain’s Defence Minister Ben Wallace apologised for the data breach publicly in Parliament. He explained that he is aware of the compromise of safety of the Afghan interpreters and has suspended an official as a result of the breach. Upon discovery, the Ministry sent out another e-mail advising the affected individuals to delete the previous e-mail and to change their e-mail addresses. Additionally, the Ministry of Defence will offer extra support to those affected by the incident. The Minister also stated that correspondence processes have already been changed.
In the meantime, a second data breach by the Ministry of Defence was uncovered on Wednesday. This time, an e-mail was sent to 55 people requesting them to update their details after the UK officials were unable to contact them. At least one of the recipients is a member of the Afghan National Army. Again, the e-mail was sent with all recipients in “cc” and not in “bcc”.
Military experts and politicians have criticised the Ministry for the data breaches which unnecessarily endanger the safety of Afghans, many of whom are hiding from the Taliban. The investigation into data handling by the “Afghan Relocation and Assistance Policy” team within the Ministry of Defence is still ongoing, a spokesperson of the Ministry has said.
30. August 2021
On August 26, 2021, the UK Department of Culture, Media and Sport (DCMS) published a document in which it indicated the intent to begin making adequacy decisions for UK data transfers to third countries.
As the UK has left the EU, it has the power under Chapter V of the UK General Data Protection Regulation (UK GDPR) to independently assess the standard of data protection in other jurisdictions, and recognize certain jurisdictions as adequate for the purpose of foreign UK data transfers. This was announced by the DCMS in a Mission Statement including reference to international data transfers, “International data transfers: building trust, delivering growth and firing up innovation“.
“In doing so we want to shape global thinking and promote the benefits of secure international exchange of data. This will be integral to global recovery and future growth and prosperity,” writes the UK Secretary of State for Digital, Culture, Media and Sport, Oliver Dowden and Minister for Media and Data John Whittingdale.
The UK has developed and implemented policies and processes for reaching adequacy agreements with its partners. So far it has identified 10 countries as “priority destinations” for these deals. The countries include Australia, Brazil, Columbia, The Dubai International Financial Centre, India, Indonesia, Kenya, The Republic of Korea, Singapore and the USA.
The adequacy of a third country will be determined on the basis of whether the level of protection under the UK GDPR is undermined when UK data is transferred to the respective third country, which requires an assessment of the importing jurisdiction’s data protection laws as well as their implementation, enforcement and supervision. Particularly important for the consideration will be the third country’s respect for rule of law and the fundamental human rights and freedoms.
The Mission Statement specifies four phases in assessing the adequacy of a jurisdiction. In the first phase, the UK Adequacy Assessment team will evaluate if an adequacy assessment will take place. The second phase involves an analysis of the third country’s level of data protection laws, the result of which will influence the third phase, in which the UK Adequacy Assessment team will make a recommendation to the UK Secretary of State. In the fourth and last phase, the relevant regulations will be presented to Parliament to give legal effect to the Secretary of State’s determination.
Adequacy decisions are planned to be reviewed at least once every four years, and may be subject to judicial review.
The developer of the popular app “Angry Birds” is currently under investigation by the New Mexican Attorney General.
On August 25, 2021, New Mexico Attorney General Hector Balderas filed charges against Rovio Entertainment. The company is alleged to have violated the federal Children’s Online Privacy Protection Act (COPPA) and to have intentionally collected the data of players under the age of 13. One of the accusations is that the data was processed for commercial purposes.
COPPA requires app developers to inform parents of children of the appropriate age about their data collection practices. Further, it is required to obtain parental consent for the collection of personal data from children under 13 and to properly record that consent.
The Attorney General’s complaint alleges that children’s data was disclosed to third parties for the purpose of targeted advertising. The data is analyzed, vermacred to third parties, and from then on is also available to an even wider circle of interests. The Angry Bird developer is also said to have failed to obtain parental consent and to have proclaimed it. The privacy policy was also said to be misleading. The company however stated that the Angry Birds app was not for children. Nevertheless, according to the authorities the developers are aware that the application is downloaded and played by a young audience in particular. Even in the event that the privacy policy is not specifically marketed to minors, however, the company must take measures under COPPA to minimize the risk to children.
The procedure may entail civil penalties, restitution, and other relief.
Children’s data also receive special protection within the EU. According to Art. 8 of the GDPR, this protection even applies up to the age of 16. However, the state legislators are free to set this limit at the age of 13.
27. August 2021
The Mongolian legislation on the protection of personal data is currently limited to two laws: the Law on Personal Secrets and the Law on Organisational Secrets, both enacted in 1995. The provisions are considered vague, ambiguous and insufficient, which makes them rarely used in practice. This leads to the lack of interpretation and application. Therefore, the not well developed data protection legislation requires systematic and consistent reforms in order to meet the various societal challenges and to comply with international standards.
Within the framework of the “Action Plan of the Government of Mongolia for 2020-2021” a draft law on the protection of personal data is in the process of being approved. In this regard, the parliament of Mongolia, the State Great Khural, has recently announced discussions on several draft laws. They include the Law on Public Information, the Law on Protection of Personal Data, the Law on Cyber Security, and the Law on Electronic Signatures.
The discussions were jointly held by the Standing Committee on Innovation and e-Policy and the Standing Committee on Legal Affairs on August 10th, 2021. Now, the Mongolian government is responsible for preparing the revised drafts.
The draft Law on Protection of Personal Data aims to regulate relations with regard to the collection, processing, and use of personal data as well as to ensure their security. It outlines rights and obligations of data processors and controllers, contains data subject rights and includes provisions for international data transfers.
The bill is an important step towards alignment with international data protection standards. If passed, the law will come into force on November 1st, 2021.
