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Temi The Latvian data protection authority issues the opinion on the employer’s right to ask employees to present a vaccination certificate

The Latvian data protection authority issues the opinion on the employer’s right to ask employees to present a vaccination certificate

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​published on 26 July 2021 | reading time approx. 3 minutes


Now employees who are vaccinated or who have recovered from Covid-19 are allowed to return to their workplaces and not to observe a distance of two meters between persons and wear protective equipment. The rules in force allow employers to ask employees to provide evidence of their vaccination or recovery from Covid-19 (a digital certificate which can be downloaded from the official website).

This Latvian certificate system is a part of the common European digital green certificate system. 

Accordingly many employers who want to bring employees back to the workplace which involves reducing or removing social distancing and other safety measures are wondering how they can legally verify whether their employees correspond to the aforementioned criteria. 

Recently, the Data State Inspectorate of the Republic of Latvia (the Inspectorate) published its opinion regarding the employer’s right to verify whether its employees correspond to the status of a vaccinated person or a person who has recovered from Covid-19 in order to benefit from working from the workplace with no social distancing rules.

The Inspectorate noted that the information on person’s health is considered a special category of personal data under the GDPR, thus obtaining and storing such information constitutes personal data processing. In this regard processing of such data is allowed only if there is a special basis in line with the GDPR. 

In the opinion of the Inspectorate, such basis is Article 6 (1) e), i.e. processing is necessary for the performance of a task carried out in the public interest, and Article 9 (2) i), i.e. processing is necessary for reasons of public interest in the area of public health. Thus, employers are allowed to ask employees to present the aforementioned certificate. If the employee does not show such certificate he or she shall be consider as the one that does not correspond to the defined criteria and cannot benefit from easing of Covid-19 restrictions at the workplace.

In order to respect the principle of data minimization, the Inspectorate has listed activities that the employer can do and that the employer is not advised to do when processing the employees’ data on Covid-19 recovery and vaccination. In short, there is a number of steps the employer can take:
  • ask employees to present a certificate to verify whether they correspond to the required status if employees want or need to return to the workplace;
  • compile a list of employees who can work from the workplace and benefit from easing of social distancing rules (but this might not be necessary if there are less than 20 employees in the workplace);
  • ask employees to inform the employer if their status changes.

The employer is advised not to:
  • make a photocopy of a certificate or other documents regarding the fact of recovery or vaccination;
  • collect detailed information on employees’ recovery from Covid-19 or vaccination (for example, date of vaccination, type of vaccine etc.);
  • keep this data longer than necessary; 
  • to hand over this data to third parties;
  • allow access of such employees who are not in charge of handling such data.

It is expected that the laws and regulations on vaccination will continue to evolve in the next few months. Employers need to be able to adapt and make plans to respond to new rules as they arise and always keep in mind that they shall comply with the requirements of the GDPR.

DATA PROTECTION BITES
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Our newsletter aims at collecting updates, news and insights on data protection matters worldwide, 
with a special focus on the GDPR. 

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Anna Kušnere

Lawyer, Certified Data Protection Specialist

+371 6733 8125

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