Recently, the Ministry of Social Affairs and Employment (SZW) published a brief explanation of the policy rules "The sick employee" of the Autoriteit Persoonsgegevens (AP). The policy rules are a further interpretation of statutory rules for processing personal data, case law and general standards for health data exchange. The policy rules are particularly intended for employers and other parties who process data on the health of sick employees.
In the policy rules, the AP specifies what information the employer may request and record as part of sick call and reintegration. The resulting information is very limited. This seems to complicate the reintegration process in practice.
Thus, the AP holds that the employer may not ask about the employee's capabilities and limitations. Thus, when reporting sick (and later in the reintegration process), the employee is not required to indicate what work he can still perform. Even if the employee provides this information voluntarily, the employer may not record this information in the absence system.
Background to this is, that the mapping of functional possibilities is primarily a task of the company doctor. Only after the company physician has determined these capabilities and shared them with both the employee and the employer may the employer include this information in the absence system.
Thus, to avoid delay in the reintegration process, it is important for the employer to involve an occupational physician at an early stage (earlier than the prescribed 6 weeks). In practice, this is often difficult to achieve and leads to additional costs for the employer. Employers' association AWVN has criticized this in the past.
The recently published explanation of the SZW briefly addresses the aforementioned issue. On the one hand, the SZW is of the opinion that employees themselves are co-responsible for recovery and return to work on the basis of good employee conduct. This implies that they can (of their own accord) indicate what work they can still do. On the other hand, the SZW is of the opinion that the employer may not exert pressure on this and may not ask for it. If necessary, however, the company doctor can be called in to determine functional capabilities.
For now, the reasoning of the SSW does not seem to deviate from the standards used by the AP. Unfortunately, therefore, employers do not make much progress with the explanation. This also applies, incidentally, to recording conversations in which work agreements are made. According to the SZW, agreements about the work to be performed may be recorded. However, if the functional possibilities have been discussed on the employee's initiative, the employer is not allowed to record these details. As indicated earlier, this is only allowed after the company doctor has mapped these possibilities, according to the SZW (and in the same line the AP).
Although the policy rules were published before the General Data Protection Regulation came into force, the standards contained therein still apply to the AP as a starting point when applying enforcement measures. Following the policy rules is therefore still recommended.
This article can also be found in the Privacy in the Workplace file
