Is an employer allowed to ask proof of vaccination or proof of having had COVID-19 from his or her employee?

Pursuant the General Data Protection Regulation, an employer is generally not allowed to request health information from an employee. However, exceptions apply to this, for example, in cases of legitimate interest.
Before requesting information from your employee regarding vaccination or arranging vaccination of your staff, check whether:
1. You have assessed the biological hazards of the working environment in the course of the risk assessment of the working environment.
Read more: coronavirus as a biological hazard
2. You have planned measures to mitigate the biological hazard.
3. You have introduced the outcomes of the risk assessment and the action plan to your employees and have recorded it.
Examples of measures:
- Reduce the number of employees in the area exposed to the hazards to a maximum extent, organise work so that as few employees as possible come in contact with their colleagues or customers. To minimise contacts between employees and customers, consultations could be organised over the phone or via Skype, for example, instead of meetings, or parcels could be delivered contact-free.
- A good practice in reducing contacts is also assigning the same employees to each shift – whereas earlier, employees worked in different shifts and therefore came in contact with more colleagues, shifts should now include a fixed set of employees.
- The measures also include allowing a limited number of customers to access the workroom (shop, service hall) and marking their routes and permitted places to stand – people are guided to keep a distance.
- Organise the handling and removal of contagious materials (e.g. used tissues) in a manner which avoids the entry of biological hazards into the working environment or maintain their presence in the working environment at the lowest possible level. The cleaning staff should remove rubbish from the bin in a trash bag and not remove objects, including contagious materials, from the trash bag.
- Review cleaning activities to see if they are sufficient in the current situation. Consider how often cleaning and disinfecting of surfaces is required. Who should do the cleaning. If necessary, discuss it with the employees if cleaning is not a part of their regular duties. Purchase disposable gloves for cleaning so that the cleaning staff would not come into contact with the disease.
- Each employer is required to monitor that his or her employees perform work properly. In the current situation, attention must also be paid to whether employees comply with hygiene requirements, i.e. wash and disinfect their hands.
- Introduction of the obligation to wear a mask if the results of the risk assessment reveal it is necessary. If an employer imposes an obligation to wear a mask, employees must wear a mask.
- Ensure the possibility of vaccination to the employees exposed to biological hazards for which an effective vaccine is available. This means that an employer shall organise vaccinations to employees if necessary, if it is possible. He or she can discuss with an occupational health doctor, which employees should be vaccinated.
- Put in place collective protection measures or personal protective equipment where exposure to a biological hazard cannot be avoided by other means. Collective protection measures and equipment should be preferred over personal protective equipment when taking protective measures. For example, give preference to installing glass walls between customers and customer service representatives, reducing the number of customers, and increasing distances over the use of masks. The downside of using masks in customer service is that a mask covering the mouth makes communication more difficult, whereas a glass does not interfere with communication as much.
3. What measures have been provided for the working environment action plan?
Consider possible actions for cases where your employee or customer turns out to be a virus carrier (infected). Think about who should receive this information. For example, an HR manager or specialist who, in turn, informs employees who have been in contact with the infected employee (customer) and, if necessary, agrees on which tasks the employee can perform while staying in quarantine in home office. Also, how the premises are disinfected, if necessary. It would be a good idea to look up the relevant companies and their contact information beforehand so that you would not have to do this research when the service is already needed.
4. Have you introduced the outcomes of the risk assessment to your employees?
An employee must be aware of anything that concerns health risks present in the working environment, precautions to avoid the effects of biological hazards, hygiene requirements, use of personal protective equipment, avoidance of a hazardous situation, and activities in the event of an accident. This means that employees must be notified after a risk assessment is organised or updated or new measures are taken. If employees do not know why some measures have been introduced or why the employer has introduced new rules, it leads to misunderstandings. In uncertain times, it is still important to find the time to communicate with the employees and explain why rules have been put in place and why it is important to follow them.
5. Have you explained to the employees why, how frequently, and how you will request information regarding vaccination?
Cooperation and communication are always very important in working relationships, especially in the current difficult situation. Currently, problems that reach the Labour Inspectorate regarding the coronavirus are mainly caused by the fact that an employer has not explained to the employees which measures have been put in place or are planned to be put in place and how they protect the health of employees. On the other side, the employer does not listen to the concerns of the employees and does not take their fears seriously. Thus, informing employees, communication with each other, and listening are very important.
If the outcome of the risk assessment reveals that the vaccination requirement is absolutely necessary and the employer has answered ‘yes’ to the previous questions, requesting proof of vaccination from employees may be possible. If this conclusion has not been reached, the aforementioned proof may not be requested.