The World Health Organization WHO has declared the outbreak of the coronavirus COVID-19 a pandemic. It is important for employers to know what (preventive) measures they may take to prevent (further) infection in the workplace and how these measures relate to employees' right to privacy.
Since May 25, 2018, the General Data Protection Regulation (AVG) has been in force. This means that the same privacy laws apply throughout the European Union (EU). Under the AVG, employee health data qualifies as special personal data that may only be processed if strict conditions are met. Collecting and processing employee medical data, such as noting the nature and cause of the employee's illness, is not permitted. Not even if an employee consents to the processing of medical data. This is because - according to the reasoning of the Personal Data Authority (AP) - an employee is in a dependent relationship with the employer and therefore cannot freely give his consent.
Under the AVG, companies are prohibited from processing special personal data unless a company can invoke an exception and has a basis for the processing. This will only be assumed with employers in special cases. Although several news reports have argued that the government can help employers by indicating from a national interest that temporary preventive measures - such as preventive screening of employees for COVID-19 - will be allowed, the AP is not (yet) following this line.
An employer may ask and record, in relation to an employee's health, only what is strictly necessary to know. Employees (people in general) have the right to keep information about their health as private as possible. An employer may ask how long an employee thinks his/her absence will last, but not what illness an employee has. This is qualified by the AP as not strictly necessary information. Taking the temperature or asking about symptoms such as coughing or fever or keeping track of where an employee has been are also examples of (preventive) measures that are not allowed under the AVG. For an employer, it is therefore advisable to avoid direct questions about any symptoms related to a possible coronavirus infection.
In case of a violation of the AVG, the AP can impose a fine of up to €20 million or up to 4% of the company's annual worldwide turnover (if this amount exceeds €20 million). The question is whether a violation of the AVG to prevent (further) infections with corona in the workplace will be punished so severely by the AP. As far as is known, two fines have so far been imposed in connection with a violation of the AVG: € 460,000 to the HagaZiekenhuis and € 525,000 to tennis association KNLTB.
Employers have the right to issue reasonable instructions to their employees. If an employer issues instructions to prevent further contamination of COVID-19 infections in the workplace, such as a request to regularly clean workstations with decontamination wipes and to work at home if possible (if the home work situation complies with relevant (occupational health and safety) laws), then an employee must follow these instructions.
If it is suspected that an employee is infected with the coronavirus, the AVG does not allow an employer to have the employee tested. As an employer, however, you can involve the occupational health and safety service or company doctor. The company doctor/occupational health service will contact regional GGD (as a matter of urgency) if corona infection is suspected. The GGD will then decide whether the employee will be tested for COVID-19 and, if the employee is indeed found to be infected, take measures in consultation with the employer to prevent further spread in the workplace. If there is a reasonable suspicion that an employee is infected with corona, the advice is to refer these employees (preventively) to the company doctor/paramedic.
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