Previous blogs on our website have discussed the processing of personal data of sick employees and the Autoriteit Persoonsgegevens's Policy Rules. In July 2018, in coordination with a number of unnamed stakeholders, the Ministry of Social Affairs and Employment provided an explanation of those policy rules where it comes to asking for and processing data by the employer when reporting sick. With this explanation, it has become (somewhat) clearer what is and what is not allowed in the period from reporting sick until the first advice from the company doctor.
The Ministry reiterates once again that during illness, data may only be processed that is necessary for the performance of the employment contract, the conduct of business or to fulfill a legal obligation - such as reintegration. In that context, the employer may not ask the employee about a diagnosis or treatment by a doctor, nor about the employee's functional capabilities and limitations.
This does not prevent the employer and the employee from discussing how the return to work can be given substance. According to the Ministry's explanation, the employee himself can indicate whether he can still perform certain (partial) tasks, (partial) functions or activities. However, the employer may not put pressure on this and may not ask about it. If necessary, the employer may ask the company doctor what the employee is capable of doing.
Next, the explanation states that from the conversation between the employer and the employee, only what work arrangements were made may be recorded, in the sense of tasks or activities to be performed. Thus, the employer may not record anything about functional capabilities or limitations, even if the employee has said something about them. Functional capabilities may only be recorded if the company doctor has determined them and shared them with the employer and employee.
In practice, it is likely to be difficult to always make this distinction so clearly. For example, if the agreement is made and recorded that the employee will resume work but will only use one arm in the process, this indirectly indicates that the employee has restrictions on his other arm. Moreover, by explaining the Ministry, the employer does rely heavily on the employee's attitude. If the employee does not feel responsible for a (quick) return to work, it becomes difficult for the employer to fulfill the reintegration obligations. If he does not know what the employee is capable of, he also cannot assess how to shape the reintegration. The Ministry indicates that if circumstances warrant, the company doctor can be called in at an earlier stage than the legally prescribed period of up to six weeks after reporting sick.
The bottom line is that the employer must immediately call in the company doctor for almost all sick reports, so that it is clear from the start what the possibilities and limitations are and the right reintegration activities can be undertaken. However, this will lead to additional costs for employers and experience shows that it is also not always easy to find an occupational physician who can summon the employee to his consultation hours at short notice.
In short, a little more clarity but it is questionable whether employers will be happy with this explanation.
Take care when processing personal data of sick employees (Part 1)
Take care when processing personal data of sick employees (Part 2)
Take care when processing personal data of sick employees (Part 3)
This article can also be found in the Privacy in the Workplace file
