Privacy Guarantor: “Employer cannot ask employees if they have been vaccinated against Covid. But in the health sector, non-vaccinated people can be excluded from certain jobs on the advice of a competent doctor "

Privacy Guarantor: “Employer cannot ask employees if they have been vaccinated against Covid. But in the health sector, non-vaccinated people can be excluded from certain jobs on the advice of a competent doctor "
(Reading time: 2 - 3 minutes)

Grante privacy clarifies this in some Faq on the vaccination of workers. Focus on health care work. For the Guarantor, pending an intervention by the national legislator who assesses whether to set the anti Covid-19 vaccination as a requirement for the performance of certain professions, work activities and duties, currently, in cases of direct exposure to "biological agents" during the work, as in the health context which involves high levels of risk for workers and patients, the “special protection measures” envisaged for certain work environments, including the inability to perform certain tasks, are applied.

FEBRUARY 18 - Can the employer ask their employees to get vaccinated against Covid to access the workplace and to perform certain tasks, for example in the health sector? Can you ask the competent doctor for the names of the vaccinated employees? Or ask workers for confirmation of vaccination directly?
 
These questions were answered by the Privacy Guarantor with some specific Faq with the intent - reads a note from the Guarantor - to provide useful information to companies, bodies and public administrations so that they can correctly apply the regulations on the protection of personal data in the emergency context, also in order to prevent possible illicit processing of personal data and to avoid unnecessary management costs or possible discriminatory effects.
 
In the Faq it is explained that the employer cannot acquire, even with the consent of the employee or through the competent doctor, the names of the vaccinated personnel or a copy of the vaccination certificates. This is not allowed by the regulations on the protection of health and safety in the workplace or by the provisions on health emergencies.
 
The employee's consent cannot constitute, in these cases, a condition of lawfulness of data processing. On the other hand, the employer can acquire, based on the current regulatory framework, only the judgments of suitability for the specific job drawn up by the competent doctor.
 
The Guarantor also clarified that - pending an intervention by the national legislator that possibly imposes vaccination against Covid-19 as a condition for the performance of certain professions, work activities and duties - in cases of direct exposure to "biological agents" during the work, as in the health context, the provisions in force on the "special protection measures" envisaged for such work environments (Article 279 of Legislative Decree no. among other things, the inability to perform certain tasks.
 
Also in these cases, only the competent doctor, in his function of connection between the health system and the working context, can process personal data relating to employee vaccination. The employer must therefore limit himself to implementing, on an organizational level, the measures indicated by the competent doctor in cases of partial or temporary unfitness.
 
Here are the faqs:
 
1. Can the employer ask his employees for confirmation of the vaccination?
 NO. The employer cannot ask its employees to provide information on their vaccination status or copies of documents proving that they have been vaccinated against Covid-19. This is not allowed by the emergency provisions and by the regulations on the protection of health and safety in the workplace.
 
The employer cannot consider the processing of data relating to vaccination on the basis of the consent of the employees lawful, since consent cannot in this case constitute a valid condition of lawfulness due to the imbalance of the relationship between the owner and the interested party in the working context (considering 43 of the Regulation).