When parents are confronted with the question, "Has your child been vaccinated?" when registering their child at a children's center, the question arises as to whether children's centers are allowed to ask this. After all, whether or not your child has been vaccinated is 'medical data' and asking about this is surely in violation of the General Data Protection Regulation (AVG)? To answer this question, it is important to understand the context.
Over the past century our health has increased tremendously, this is mainly due to and clean drinking water and vaccinations. Vaccinations are a part of the national vaccination program. In 2018 we saw in the Netherlands and decrease in the willingness of parents to vaccinate.(1) The government was concerned, but also parents got worried about the safety of their children in child care. Reason for two Lower House members Raemakers and Van Meenen (both from D66) to submit an initiative bill on Oct. 2, 2018, with the aim of amending the Childcare Act to allow childcare centers to refuse children who have not been vaccinated. The choice made by a child care center regarding refusing children who do not participate in the national vaccination program will be recorded in the National Register of Child Care (LRK).
The bill stems from the consideration that a child center's communicable policy is in the interest of parents' freedom of choice and that they can make an informed assessment of whether a child center is appropriate for their child. There are parents who take the position that it is in the best interest of their children to allow them to attend children's centers that admit only vaccinated children.(2)
Children's center owners are not required to refuse unvaccinated children. It is up to them to choose such a policy or not. Just as parents are free to choose one child care center or another, or not to use the services of any child care center.
The initiative bill was passed by the House of Representatives on Feb. 18, 2020, and is now before the Senate.(3)
Now that the legislator has decided that children's centers are allowed to have a policy that they only take in vaccinated children, a logical and unavoidable consequence in such a situation is that parents are asked whether their child has been vaccinated and whether there is proof of this. Is this possible under the AVG?
The AVG contains a number of due diligence requirements for processing personal data. For example, a "processing ground" must be present; this exists in the form of the agreement between parents and the child center. Indeed, the legislator has made it possible for children's centers - as part of their agreement - to stipulate that they only accept vaccinated children.(4)
This immediately satisfies another requirement of the AVG, namely that a "proper purpose" must be present. That purpose is: to implement the policy that a children's center is entitled to pursue under the law. Then the AVG requires that only necessary data be recorded. A children's center can meet this requirement by recording in the registration that it has been verified that the registered child has been vaccinated in accordance with the national vaccination program and no more than that. Of course, a childcare center has to comply with all requirements of the AVG, such as the security of stored data, who has access to the recorded data, etc.
Of course, this applies to children only from the age at which they are vaccinated in the state vaccination program; for measles, mumps and rubella from 14 months.
Children's centers may ask about the vaccination of the children to be registered, but this must be set out in the child's center policy and available to parents. Children's centers may neither ask for nor record more than is necessary to comply with their own policies. All of this should be transparent to parents.
(1) E.A. van Lier et al, 'Vaccination Rate National Vaccination Program Netherlands Report Year 2018', National Institute for Public Health and the Environment 2019-0015 (2019).
(2) Parliamentary Papers II 2018/19, 35049, 5 (Explanatory Memorandum as amended following the opinion of the Council of State's Advisory Division) p. 2.
(3) https://www.eerstekamer.nl/wetsvoorstel/35049_initiatiefvoorstel_raemakers
(4) Child care center holders may reserve in their contracts with parents the right to terminate the agreement if proof of vaccination is not shown within a reasonable time after a child becomes eligible for vaccination under the National Vaccination Program.
