With the rollout of COVID-19 vaccination programs across the EU and the UK, employers are faced with questions about whether or not they are legally permitted to ask employees about their vaccination status and, if so, how that information may be used.

Employers may wish to inquire about the vaccination status of their employees in order to comply with their general obligation to ensure a safe workplace and minimize the risk of exposure to COVID-19.  This raises privacy issues under the General Data Protection Regulation (“GDPR”), because employees’ vaccination status falls within a special category of personal data that concerns the health of individuals (Art. 9(1)).  This category is subject to more stringent data protection measures due to the sensitive and personal nature of data, and can only be processed in very limited circumstances (Art. 9(2)).

(1) Divergent Views Across Europe

The approaches taken to the collection and processing of vaccination data across the EU and the UK are varied.  Several countries including Belgium (see here in French), France (see here and here in French), Germany (see here, here, here and here in German), Italy (see here and here in Italian), the Netherlands (see here in Dutch), and Ireland (see here) have issued guidance indicating that employers are not permitted to ask employees about their vaccination status because there is no valid legal basis to do so.

In some countries, such as the Netherlands and Italy, if employees disclose information relating to their vaccination status to occupational health physicians, the physician may be permitted to process health data in certain circumstances (e.g., the Netherlands permits processing of such data in the event of absenteeism or reintegration of employees), but will be bound by confidentiality obligations and therefore cannot disclose this information to the employer.  That said, inquiries of a general nature may be allowed (e.g., the Italian regulations permit an employer to ask the occupational health physician whether an employer is fit for work).

By contrast, other countries such as Austria (see here in German), Finland (see here in Finish), Spain (see here in Spanish) and the United Kingdom (see here) permit an employer to collect health data from employees to the extent that the information is necessary to ensure the safety of the workplace (i.e., to prevent infections at the workplace).  This processing of data is based on Article 9(2)(b) of the GDPR, which permits the processing of health data “for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment”.

(2) Necessity and Proportionality

Any measures taken to ensure the safety of the workplace must be necessary and proportionate, such that there are no less intrusive alternative measures to achieve the same result.  The UK requires that employers have a “clear and necessary” reason to collect vaccination data from employees, and that they assess these reasons by conducting a legitimate interest assessment and/or data protection impact assessment.  Furthermore, with respect to the use of vaccination data, Spanish guidance indicates that the information may be used only in accordance with Spanish employment law, which prohibits employers from using that information to discriminate against employees that refuse to be vaccinated.  This is in line with commitments made by EU institutions to ensuring non-discrimination between vaccinated and unvaccinated people.

To process vaccination data, potential exceptions to the prohibition against processing special categories of personal data under Article 9 GDPR include consent and necessity for the safety of certain professions.  For example, though not an official statement, the spokesperson of the Polish data protection authority suggested in a recent article that employers could ask employees whether they were vaccinated on the basis of consent – noting that, given the inherent imbalance that exists in an employer-employee relationship, employers must ensure that such consent is freely and validly given (see here).  Likewise, some countries – including Germany and Ireland – recognize that there are specific employment contexts where an employer may lawfully process vaccination data on the basis of necessity.  For example, vaccinations may be considered a necessary safety measure for employees working in hospitals, medical facilities, emergency services, or any other frontline healthcare service.

(3) Other Key Considerations

In the absence of a more unified approach, employers should generally err on the side of caution when deciding whether or not to collect and process vaccination data from their employees.  Sensitive health data of this kind should only be collected for specific legitimate purposes and only to the extent that it is necessary and proportionate to do so.  If vaccination data is collected, it should only be used for lawful and nondiscriminatory purposes, kept secure and subject to existing duties of confidentiality owed to employees, and retained only for the minimum period of time required to fulfil their legitimate purpose.  Employers should be transparent, via a privacy notice, as to their reasons for checking or recording employee vaccination status and how the information will be used.

Employers should be particularly careful if the collection of vaccine information could have a negative consequence for employees – e.g., denial of an employment opportunity.  Such measures may result in breaches of local employment laws, including anti-discrimination laws, depending on the circumstances.

We will continue to monitor developments in this area. In the meantime, please feel free to reach out to the Covington team for any questions.

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Photo of Dan Cooper Dan Cooper

Daniel Cooper heads up the firm’s growing Data Privacy and Cybersecurity practice in London, and counsels clients in the information technology, pharmaceutical research, sports and financial services industries, among others, on European and UK data protection, data retention and freedom of information laws…

Daniel Cooper heads up the firm’s growing Data Privacy and Cybersecurity practice in London, and counsels clients in the information technology, pharmaceutical research, sports and financial services industries, among others, on European and UK data protection, data retention and freedom of information laws, as well as associated information technology and e-commerce laws and regulations. Mr. Cooper also regularly counsels clients with respect to Internet-related liabilities under European and US laws. Mr. Cooper sits on the advisory boards of a number of privacy NGOs, privacy think tanks, and related bodies.

Photo of Helena Milner-Smith Helena Milner-Smith

Helena Milner-Smith helps clients navigate international HR-legal compliance issues. Her practice includes implementing global employment contracts, policies and codes of business conduct, managing multi-country reviews and projects, advising on the employment aspects of large-scale corporate reorganisations, handling disciplinary and grievance matters and dismissals…

Helena Milner-Smith helps clients navigate international HR-legal compliance issues. Her practice includes implementing global employment contracts, policies and codes of business conduct, managing multi-country reviews and projects, advising on the employment aspects of large-scale corporate reorganisations, handling disciplinary and grievance matters and dismissals, and negotiating settlement agreements. She has successfully defended clients in the UK employment tribunal. Ms. Milner-Smith has also gained valuable in-house experience while on secondment at three large multinational corporations, including a pharmaceutical company.

Vicky Ling

Chu Tong (Vicky) Ling attended the University of Cambridge and New York University School of Law.