Each week in July and August, our focus will be on a different topic that has been scrutinized by the Belgian Data Protection Authority. With a few simple tips, your summer cocktail of data protection news will be complete.
This week’s topic: Data Protection @ Work (Part 1/2)
In these difficult times, finding the right balance between protecting employee health, on the one hand, and data protection on the other hand, is not always easy. Below, we have analyzed a couple of questions with which employers often struggle these days. Our answers are based, among other things, on the official position of the Belgian Data Protection Authority.
1. Is it possible to impose COVID-19 tests on employees before being allowed back to work?
An employer cannot impose a COVID-19 test on his employees purely based on the employer’s authority. After all, this affects the physical integrity of the employees.
The processing of health data is prohibited under Article 9.1 of the GDPR unless an exception is made by law or if the person concerned gives specific, free, informed and explicit consent. In the relationship between employee and employer, the employee's consent is rarely “free”, given the hierarchical context and the fact that an employee may be under great pressure to consent.
In the absence of a specific legal basis, an employee can therefore not be forced to undergo a test. It is, however, important to emphasize that staff members could be obliged to have themselves tested based on other legal requirements, for example when they are employed in the medical sector or when returning from holidays abroad.
2. Is it possible to take temperature tests before letting employees enter the employer’s premises?
The employer, through his hierarchical line and/or any other person (social worker, independent nurse, security guard, etc.), is not allowed to run temperature tests on his employees, or to require any certificate of good health before allowing an employee to enter the workplace, just as the employer may not involuntarily impose temporary incapacity for work or sick leave on his employees.
Measuring body temperature is considered as collecting information about the state of health of a body, which is therefore considered to be a medical act, especially if the ability to work is linked to it. Such action is the prerogative of the treating physician or the occupational physician who can then refer to the employee's treating physician.
In case of doubt about clinical symptoms in the workplace (coughing, headache, rhinitis, fever, muscle pain, etc.), the employer can refer the employee to his treating doctor or, if necessary, to the occupational physician who can give medical advice.
3. Is it possible to let employees fill in a questionnaire regarding COVID-19 symptoms?
An organization can never oblige employees to complete a questionnaire regarding COVID-19 symptoms as this is considered a processing of health data.
Like testing, the processing of health data is prohibited under Article 9.1 of the GDPR unless under the conditions described above. Given that there are currently no specific exceptions made by law, the free consent of the employee is required, but very difficult to validly obtain.
4. Which requirements must be fulfilled by employees after returning from vacation?
Testing requirements have been implemented by the Belgian government regarding travels to COVID-19 affected areas. These rules apply between citizens and the public authorities, but of course they have immediate impact on the employment relationship.
If an employee decides to travel to COVID-19 affected areas, this employee will have to bear the consequences imposed by the government. The obligations differ depending on the “code” of the area.
- Green area: There is no problem, the employee returns to the workplace or continues to work as before.
- Red area: The employee is required by law to go into quarantine (please note there are certain exceptions to this obligatory quarantine). The employee is also required to undergo testing (imposed by the government). The employee will have a certificate to stay home. An employer may refuse workplace access on the basis of this information. However, the employer will not always be aware of the travel destination (see below).
- Orange area: The government recommends the employee to be quarantined and tested but does not impose this after a stay in the orange area (as opposed to the red area). An employer can therefore not refuse access to the workplace if an employee returns from an orange area, as long as it is not established that the employee is incapacitated for work by a medical certificate from a physician. In other words, the employer cannot oblige the employee to go into quarantine. If the employer refuses entry, the employer will have to pay the full remuneration to the employee if he cannot work from home. If the employer refuses to do so, there is a risk that the employee will claim compensation.
The only possibility in this case is to instruct/ask these employees not to come to work after their return from an orange area, but to go to the personal physician first.
Please note that the color given to a holiday destination should be checked at the moment the employee returns. The color code given to the area at the time the employee starts his vacation is not relevant. The color codes of the countries are updated daily on the website of the Federal Government: https://diplomatie.belgium.be/en.
5. Is it possible to let the employees fill in a questionnaire regarding their travel destination?
Employees cannot be obliged to communicate where they are travelling in their private time, nor can an employer forbid his employees to travel to a risk area.
Of course, an employer can voluntarily inquire about the holiday destination of employees who are planning to go abroad. Completion of a questionnaire is only possible if the employee can freely refuse to complete the questionnaire without being adversely affected (see above).
Reach out to us if you wish to receive more detailed guidance. We can of course also assist with the drafting of corporate policies for dealing with COVID-19 when employees return to work after their annual leave.
