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.
