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14-10-2021

Covid vaccination and the GDPR

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A recent survey in Belgium has revealed that the majority of employers is in favour of a compulsory vaccination of their employees.

Can employees be required to be vaccinated and can employers ask for proof of vaccination?

The answer to both questions at the moment is: no. The processing of data concerning health is generally prohibited by the GDPR.

There are exceptions to this prohibition. A data subject could give its express consent. However, in order to be valid, this consent must be given freely. Given the subordinate relationship, an employee cannot be deemed to give his/her consent freely.

Exceptions could also be made in the public interest. However, so far, there are no such exceptions laid down by law. There are certain vaccination obligations for workers exposed to biological agents (hepatitis B, tetanus and TB test) but Covid-19 has as yet not been included by the legislator.

Proof of vaccination, recent recovery or negative test (the so-called “Covid Safe Ticket”) can only be demanded with a legal basis, such as for mass events or travel. At the moment such legal basis does not exist for employment situations.

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