The law allows employers to seek information about employees’ coronavirus vaccination. What is important is the purpose for which such information is sought and how it is handled. Many have recently questioned the employer’s right to verify if its employees have taken a COVID-19 jab. The concerns mainly relate to the processing of health information as a special category of employees’ personal data. In particular, an argument is made that it is impossible to see how GDPR can offer any grounds for the employer to process such employee data.

Facing such concerns, the heath minister has again assured the public that work is underway on legislation intended to enable employers to verify employee vaccination status.

We believe that current law as it is already offers employers an option to obtain information about their employees’ COVID-19 vaccination. What is important is the purpose for which such information is sought and how it is handled.

No registration as key solution

We think worth considering is a solution in which vaccination status is verified without GDPR applying. In accordance with Article 2(1), GDPR applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. And Article 4(6) GDPR explains, that ‘filing system’ means any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis.

So the idea can be to so structure the vaccination status screening protocol as to ensure that it does not amount to automated data processing and that the data it returns are not part of a filing system.

For example, employees who have shown proof of vaccination can be given special tags by the employer disclosing the fact that vaccination has been taken but not disclosing any particulars of the holder. From a legal point of view, such a tag would be a kind of non-personalised voucher or sign issued to bearer.  At the same time the employer could decide that employees bearing the tag will not be subject to epidemiological restrictions applicable on company premises.

Such exemption can apply especially to the duty to wear a mask covering the mouth and the nose. Under §25 of the Council of Ministers regulation of 6 May 2021 laying down certain restrictions, orders and prohibitions in relation to the state of epidemic (DzU poz. 861), the duty to cover your mouth and nose while on business premises is not absolute. Employers may impose different rules than those in the regulation, limiting the obligatory use of face masks to only unvaccinated persons.


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