These concerns saw employers turn to DPAs for advice on the legal requirements
relating to the collection and processing of such data. A large majority of DPAs’
statements considered data processing in the context of employment, with
authorities agreeing that data protection must not be jeopardised by emergency
measures, although appropriate derogations may apply.
However, evidence collected by FRA suggests that the guidance provided
by the supervisory authorities is not harmonised across Member States.
For some DPAs (Belgium, Estonia, France, Hungary, Italy, Luxembourg or the
Netherlands (see Table 1 in the Annex), employers may not collect and process
personal data related to either symptoms or infection among employees unless
workers have voluntarily provided their personal data and agreed to their
processing. Others (Austria, Denmark, Finland, Germany, Ireland, Lithuania,
Poland, Slovakia or Spain), however, indicated that employers can request
personal information related to symptoms and/or infection, if such collection
is proven to be necessary.
Similarly, DPAs are divided regarding the possibility to disclose the identity of
infected staff. In Belgium, Finland, Ireland, Latvia, Lithuania, Luxembourg and
the Netherlands, the identity of affected employees cannot be disclosed, but
staff may be informed that there is a verified case in the company. For the
Danish, French, German, Italian or Spanish DPAs, however, employers may
disclose the identity of sick colleagues.
The same applies to a lesser extent concerning the collection of personal
data on recent travel. Some DPAs consider that employers have the right to
request information related to a recent trip to a “risk area”. This is the case for
the data protection authorities of Denmark, France, Ireland, Latvia, Lithuania,
Luxembourg, Poland and Spain. However, other DPAs advised that employers
should not oblige employees to disclose personal information related to a
recent trip. This is the case in Belgium, and to some extent in Finland, Hungary,
Italy and the Netherlands, where such information may be processed, but
not requested. These DPAs indicate that employers can only collect such
information when employees have voluntarily accepted to disclose it.
4.2.2 Data processing by the media
Some media have also faced questions about the legality of processing personal
data, mainly in relation to the public disclosure of personal information about
infected individuals. In Cyprus, the DPA explicitly recalled that publishing the
personal data of patients is illegal.253 The evidence collected by FRA suggests
that the media largely apply this rule publishing only aggregated information
related to COVID-19 that does not contain personal data.
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