(Update) Processing of COVID-19 immunization data of employees in non-EEA countries

With COVID-19 vaccination campaigns well under way, employers are faced with the question of whether they are legally permitted to ask employees about their COVID-19 related information 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.

Below, we discuss whether employers in different European Economic Area (EEA) countries are permitted to process COVID-19-related data about their employees.

Brazil: According to the Labor Code (CLT), employers in Brazil have the right to require their employees to be vaccinated. 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. As 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 measures to ensure the safety and health of all their employees in the workplace. The vaccination may be considered as part of  COVID-19 risk assessments as a possible additional measure to mitigate the risks associated with infection with 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 the risk. In this case, the employer must comply with the Personal Data Protection Regulation (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. According to 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.

Russia: Employers must verify which employees have been vaccinated and record this information if such vaccinations are required by law. If a vaccination is not required by law, the employer may require this information, but employees have the right not to provide it. If the information on vaccinations is provided on a voluntary basis, the employer may keep it in the employee’s file, provided that the employee consents in writing to the processing of the personal data. An employer may impose mandatory vaccination if an employee performs an activity involving a high risk of infection (e.g. employees in educational institutions, organizations working with infected patients, laboratories working with live cultures of pathogens of infectious diseases or with human blood and body fluids, etc.) and a corresponding vaccination is listed in the national calendar of protective vaccinations for epidemic indications. All these cases are listed in the Decree of the Government of the Russian Federation dated July 15, 1999 No 825.

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.

In England, mandatory vaccination is in place for staff in care homes, and from April 2022, this will also apply to staff with patient contact in the National Health Service (NHS). Other parts of the UK have not yet introduced such rules.

USA: The Equal Employment Opportunity Commission (EEOC) published a document proposing 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 with a third party to do so, it must demonstrate that the screening questions are “job-related and consistent with business necessity.”

On November 5th, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released a emergency temporary standard (ETS) urging affected employers to take affirmative action on COVID-19 safety, including adopting a policy requiring full COVID-19 vaccination of employees or giving employees the choice of either being vaccinated against COVID-19 or requiring COVID-19 testing and facial coverage. On November 12th, 2021, the court of appeals suspended enforcement of the ETS pending a decision on a permanent injunction. While this suspension is pending, OSHA cannot take any steps to implement or enforce the ETS.

In the US there are a number of different state and federal workplace safety, employment, and privacy laws that provide diverging requirements on processing COVID-19 related information.