On March 13, 2020, the Belgian data protection authority (“APD”) issued guidance on data protection and COVID-19. The guidance is mainly aimed at employers processing personal data of employees in the context of the measures they have taken to contain the spreading of COVID-19.

The guidance is divided in the following three parts:

• legal basis for processing data;
• other data protection principles; and
• frequently asked questions about the processing of employee health data by employers.

Legal basis for processing

 The APD highlights that the processing of personal data, including health data, collected through the measures implemented to prevent the spreading of COVID-19 require a legal bases under Articles 6 and 9 of the GDPR.

The APD states that, taking into account the latest information issued by the public health authorities, companies and employers may not rely on Article 6(1)(d) GDPR (“processing necessary to safeguard the vital interests of the data subject or of another natural person”). According to the APD, the current COVID-19 situation in Belgium does not justify a broad and systematic application of this paragraph.

The APD also states that companies and employers may not rely on Article 9(2)(i) GDPR (processing for reasons of “public interest in the area of public health”) unless they are executing explicit instructions issued by the Belgian authorities.

The APD states that employers and companies shall not asses the risks to the health of employees. That task belongs to occupational physicians – i.e., a physician who is specialized in the health and safety of employees at the workplace. Belgian companies with more than 20 employees must designate such a physician, who can be internal to the company or external (in the majority of cases is external). The occupational physician can communicate any infections to the employer and persons who were in contact with the infected person on the basis of Articles 6(1)(c) and 9(2)(b) GDPR.

Other data protection principles

The APD highlights that the processing of personal data collected through the measures implemented to prevent the spreading of COVID-19 must comply with all the fundamental principles of data processing of Article 5 GDPR. In particular, companies and employers shall inform employees and visitors about the purposes for which their data are processing and the period for which their personal data will be retained.

Answers to frequently asked questions in relation to the processing of employee health data by employers

The APD states the following:

• Employers may not conduct generalized and systematic checks on employees (e.g., temperatures). Checks shall be carried out by the occupational physician. These shall only check employees in case the employer “presumes that” an employee has been exposed or presents symptoms of COVID-19.
• Employers may not require an employee to fill out a form about that employee’s health situation or recent travels. The APD recommends encouraging employees to voluntarily communicate symptoms or recent travels to risk areas to the occupational physician.
• An employer may not disclose the names of infected persons to the other employees. The employer may communicate to the other employees that an employee was infected without mentioning his or her identity.

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The publication of the APD’s guidance follows the publication of similar statements by other EEA regulators, including those of Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Lichtenstein, Lithuania, Luxembourg, the Netherlands, Norway, Slovakia, Slovenia, Spain, Sweden, Poland and the UK. Covington will continue to monitor developments in this area.