The GDPR and sick staff
The General Data Protection Regulation (GDPR) came into effect on 25 May 2018. We have noticed that many employers are not clear about the current privacy regulations applicable in relation to sick staff. This article briefly presents the policy rules of the Dutch Data Protection Authority which apply in relation to the processing of personal data concerning the health of sick employees. These policy rules provide a good guideline as to what you may also wish to know in your capacity as an employer.
After an employee reports sick, you may request and record the following data concerning their health: their telephone number and address (or treatment address), the likely duration of their absence, any current arrangements and work, whether their sickness is related to a workplace accident, whether the employee falls under the safety net provisions of the Sickness Benefits Act [Ziektewet] (but not which ones) or whether a traffic accident has occurred which involves another party who may be liable (the possibility of obtaining restitution).
Recording this with the relevant employee’s consent?
Given the chain of command between an employer and an employee, the latter may feel a need to consent to such recordkeeping. As such, there would be no question of a ‘free’ expression of will. In order to protect an employee, in principle, you may not process any details concerning their health other than those mentioned above in your capacity as their employer.
Nevertheless, you may record any of your employee's data that they have voluntarily supplied, if they have a sickness in respect of which their immediate colleagues need to know what to do in the event of an emergency. In this respect consider epilepsy or diabetes.
The likely duration of any absence may be of help
We feel that the question concerning the likely duration of absence is important. This question may be of some help with regard to what you may expect. If a sick employee is unable to answer this question, it would be up to the relevant occupational physician to answer it and to inform you accordingly. For the sake of completeness, may you ask a sick employee what they are still capable of doing in your capacity as their employer? The answer is ‘No’. Recording the degree to which an employee may be put to work would amount to recording data concerning that employee's health. It expresses the extent to which the employee can be put to work or is sick. Such health-related data may only be recorded after an occupational physician or workplace health and safety agency has been consulted about this.
What information may an occupational physician give you?
An occupational physician or a workplace health and safety agency doctor may only provide you with information in the case of absence management which you require to make a decision concerning the ongoing payment of the relevant employee’s salary, the management of their absence, their reintegration and whether there are still any current arrangements in respect of which something needs to happen. An occupational physician or a workplace health and safety agency may supply the following data concerning the health of a sick employee: what type of work the employee is or is not capable of doing any longer (this refers to functional constraints, opportunities for rest and the implications for the type of work which the employee is still capable of doing), the degree to which the employee is incapacitated (based on their functional constraints, opportunities for rest and the implications for the type of work that they are still capable of doing), the anticipated duration of their absence and any recommendations in relation to adjustments, working facilities or any intervention which you need to arrange for their reintegration.
May an occupational physician also provide you with information concerning the health of a sick employee? The answer is ‘No’. This is because it is covered by medical professional privilege.
A shortage of occupational physicians: make good arrangements
There is an impending shortage of occupational physicians. Amongst other things, this appears to be due to an exodus occasioned by retirement. However, it is possible that a growing demand is being made on occupational physicians as an increasing number of employers comply more closely with the policy rules of the Dutch Data Protection Authority. We recommend that you make proper arrangements with your occupational physician and workplace health and safety agency.
For more information you may contact your healthcare and absence consultants on our general telephone number: +31 (0)73 692 4657.