Posted on Categories coronavirus, personal data

Employers will (probably) be able to check their staff’s COVID-19 status

A bill entitled the Act on Specific Solutions Facilitating Business Operations During the COVID-19 Epidemic has been filed with the Sejm. It would allow employers in Poland to demand information from employees about COVID-19 test results, having undergone a COVID-19 infection, or vaccination against COVID-19.

According to the proposal, an employer would be entitled to demand information from an employee or a person in a civil-law relationship (e.g. a contractor) to the effect that the person has obtained a negative COVID-19 test within 48 hours before submission of the information.

Employers would have this right so long as the state of epidemic threat or state of epidemic remains in force, if necessary to counter the spread of COVID-19 at the workplace or other location designated for performance of work. (This imprecise formulation may raise doubts of interpretation, but should limit clear abuses of the proposed regulation, such as demanding information about COVID-19 status of employees or contractors already working remotely.)

The employee or contractor could be released from this obligation by showing that they:

  • Have undergone a COVID-19 infection, or
  • Have been vaccinated against COVID-19.

The proposal thus meets the expectations of employers, who have been appealing for months for instruments enabling them to check the health status of their workers. So far, there has been no clear legal basis for processing data of this type.

Such information would be provided in the form of a statement by the employee or contractor upon request of the employer. But the employer could also demand documentation necessary to confirm such information by showing:

  • A negative diagnostic test made within 48 hours before submission of the information
  • A certificate of having undergone an infection, or
  • A certificate of vaccination against COVID-19.

The bill does not specify in what respect the person would be regarded as having undergone an infection. But there is no doubt that the degree of immunity of persons who came down with COVID-19 for example at the start of the pandemic in March 2020 and persons catching it recently, e.g. in December 2021, will usually vary greatly. The level of immunity of persons receiving one, two, or three doses of vaccine will also differ. But the bill does not specify what should count as having been vaccinated, and thus it seems that information that the person has had one dose of vaccine should suffice.

What about employees (or contractors) who inform the employer that they don’t have a current test result, have not undergone a COVID-19 infection, and have not been vaccinated? The employer could then:

  • Make changes at the workplace or other location designated for performance of work, including the manner of performance of work by employees or contractors
  • Make changes in systems or schedules of working time of employees or contractors, or
  • Instruct the employee or contractor to perform work at a place different from that indicated in the contract (but in the same city or town), or assign a different type of work to the employee or contractor for pay corresponding to the type of work, but no lower than the existing pay.

What if an employee or contractor refuses to provide the information? They will be treated like someone who does not have a test result, has not undergone a COVID-19 infection, and has not been vaccinated.

Equating the employer’s entitlements with respect to employees and contractors may be understandable in light of the aim of the act, but is controversial due to the difference in these two legal relationships. The employer’s entitlements are also framed quite vaguely.

The possibility of “making changes at the workplace or other location designated for performance of work, including the manner of performance of work” is a very general entitlement, and also overlaps with the “ordinary” rights arising out of the status of an employer.

Similarly, the possibility of making changes in systems and schedules of working time is nothing special. If the drafters’ intention is to vest employers with the right to make changes in this respect under a different procedure than that provided for in the Labour Code, this should be expressly stated in the bill.

The third option, involving changes in the working location, already functions under the regulations governing remote work, but without the restriction that the work must be performed in the same locality.

However, it is a significant entitlement to allow the employer to assign a different type of work, where the only condition is to maintain the employer’s or contractor’s pay at least at the current level. While a special right of this type may be deemed acceptable in employment relationships (as similar institutions already exist in the Labour Code), this is a far-reaching intrusion in the case of non-employment civil relationships.

The bill expressly states that the employer’s use of these institutions, as well as ordering remote work (which is also possible under the Anti-Crisis Shield) in connection with COVID-19 status, shall not be deemed to constitute infringement of the principle of equal treatment in employment. Although the same conclusion could be drawn from the general non-discrimination regulations, from a practical point of view this provision should be assessed positively, as it could help avoid doubts in this respect.

The bill also addresses issues related to processing of personal data, including:

  • Retention. Processing of this personal data would be permissible for the period necessary to carry out the aim of combatting the spread of COVID-19, but no longer than through the end of the period when a state of epidemiological threat or a state of epidemic is in force. The employer would have to promptly delete such data once further processing of the data became unnecessary. Thus in practice the employer would be required to analyse how long it would need to store particular categories of data. It seems that determining the data retention period for information about an employees’ undergoing an infection would pose the greatest difficulty. In our view, it would be worthwhile to consult this with the relevant medical services.
  • Access to data. The only persons who would be allowed to process this personal data would be those holding authorisation from the employer to process such data, and obliged to keep the data confidential.

The regulations would also allow the director of an entity carrying out healthcare activity to impose on employees and contractors an obligation to be vaccinated against COVID-19, if their health condition did not present any counterindications against vaccination. But the proposal is silent on the possible consequences of failure to comply with this obligation, which imposes the burden of analysing this issue on these entities.

The bill also provides for entitlements for businesses whose activity is temporarily restricted in connection with the pandemic. They could demand information on COVID-19 from customers comparable to the information discussed above. Interestingly, in recent days that has been a lot of discussion of the position taken by the Personal Data Protection Office, which has doubts whether these measures are consistent with the EU’s General Data Protection Regulation. The regulator asserts that the aim of verification of COVID-19 certificates is to facilitate free movement during the COVID-19 pandemic. In the regulator’s view, this data can be processed only for this purpose, and this purpose cannot be broadened via national regulations.

The future of the bill is unclear at this time. It is to given a public hearing in parliament on 5 January 2022. We will report on the further work on the bill going forward.

Piotr Podsiadły, Karolina Romanowska