Normally speaking, when an employee becomes ill and as a consequence of such illness he or she is absent from work, a lot of (medical) information is exchanged between the employer, the employee, the company doctor and the UWV. However, the law provides that not all information is allowed to be collected, exchanged, saved or stored. So, what is and what isn’t allowed?
In February of this year the Personal Data Authority (Autoriteit Persoonsgegevens) published its policy with regard to the processing of personal data regarding the health of sick employees. Below you will find a summary of the most important rules and regulations that employers have to take into account when processing the personal data of sick employees.
Reporting in sick
Question: If your employee calls in sick, are you allowed to ask him or her what is wrong? The answer tot his question is ‘yes’. When an employee calls in sick, as an employer, you are allowed to ask what the cause for reporting sick. However, the employee is allowed to refuse to provide you with information with regard to anything relating to his or her medical condition.
The applicable basic principle for reporting sick – with regard to the payment of salary during illness and the reintegration of the employee – is all parties involved are only allowed to have access to necessary information. Medical information is not relevant for establishing the employer’s obligation to pay the employee’s salary or to ascertain what the employee’s abilities are with regard to reintegration.
In order to establish whether an employer is obliged to pay the employee’s salary during illness, the employer only has to know whether the employee is truly ill or disabled. For reintegration it is only relevant to ascertain what the employee’s capabilities are with regard to performing his or her work and what the prognosis is for recovery. Medical information is not relevant.
If the employee tells the employer why he or she is ill at his or her own initiative, then there no objections to that. However, the employer is not at liberty to do as it pleases with such information, or to save or store it. In order to be able to take such actions, the employer requires the employee’s explicit permission. In short, the employer has to tread carefully when provided with medical information by and with regard tot he employer.
Recording absenteeism and the company doctor
Is the employer permitted to record details regarding the employee’s illness in an absenteeism record system? The answer to this question is no. The employer is not allowed to record details with regard to the employee’s illness and most certainly not if such details can be linked directly to an individual. Collecting information with regard to absenteeism anonymously is allowed.
The company doctor is allowed to collect medical information but is he allowed to share such information with the employer? The answer to this question is also no. The company doctor has doctor-patient confidentiality to adhere to and is not permitted to share any medical information with the employer. The company doctor is also the only party in the sickness process that is entitled to collect and save medical information. The employee’s medical file will remain under the control and management of the company doctor.
Is the employer allowed to save and keep medical information in the employee’s personnel file? In principle the answer tot his question is no. The personnel file should only contain medical information if such is absolutely necessary. If a certain medical condition (such as diabetes or epilepsy) could potentially be dangerous for the employee, then medical information related to such a condition, could be necessary for possible medical assistance. In those exceptional circumstances, medical information may be kept on file, with the employee’s permission.
What to keep after recovery
Is the employer permitted to save and keep the information with regard to the employee’s absence, after the employee has recovered? That depends. The administrative details, such as the commencement date of illness, the duration of the illness and the date of recovery, can be saved as long as is necessary for the purpose for which they were collected. The maximum duration is two years after the employee has left employment.
In principle, the reintegration file has to be closed and destroyed after recovery. If the employer anticipates that there may be a recurrence of the illness then the reintegration file may be kept a while longer.
Any arrangements included in the reintegration file, which could be relevant fort he performance of the employee’s work, such as work place adjustments or adaptations, may be included in the personnel file.
In short: Which specific details are you allowed to request and record?
- The employee’s telephone number and (nursing) address;
- The expected duration of the employee’s absence;
- Information regarding any outstanding work or appointments;
- Whether the illness is related to an accident at work;
- Whether the illness is related to a car accident for which a possible third party is responsible (possibility of recourse);
- Whether the employee is eligible for any of the safety net provisions of the Sickness Benefits Act (Ziektewet), but not which specific safety net provisions.
Would you like to receive more information or personal advice? Please contact one of our International Desk members or employment law specialists. They will be happy to help.