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‘No basis’ for collecting workers' vaccine data

An employment lawyer at ByrneWallace LLP has welcomed guidance from the Data Protection Commission (DPC) on whether employers can collect information on the vaccination status of their workers.

In a note on the firm’s website, Loughlin Deegan says that there has been a lack of “clear public-health advice” on the issue to date.

He says that, while employers may have hoped or expected that there would be scope for them to gather and use vaccination data to support a return to the workplace, the DPC guidance (titled: ‘Processing COVID-19 Vaccination Data in the Context of Employment’) does not support such an approach, other than in very limited circumstances.

‘Special category’ data

The lawyer notes that the vaccination status of an individual is health data, and is therefore seen as ‘special category’ data under article 9 of the General Data Protection Regulation (GDPR). This means it may be processed only on limited grounds.

The DPC says that, as a general position, the processing of vaccine data is likely to represent “unnecessary and excessive data collection for which no clear legal basis exists”.

Referring to the Government’s Work Safety Protocol, the DPC says that it is clear that there are other measures that businesses should employ to ensure a safe workplace, before considering whether knowledge of vaccination status is a necessary measure.

‘No legal basis’

Mr Deegan says the DPC guidance makes it clear that, for the time being, there is no general legal basis for employers to request the vaccination status of employees. It acknowledges, however, that it may be necessary for employers in certain specific sectors, notably healthcare, to process such data.

“If any employers believe that specific circumstances apply to them that might make it necessary for them to process their employees’ vaccine data, employers should take specific advice in respect of those circumstances,” the employment lawyer says.

He points out, however, that the DPC guidance is subject to review, based on whether the public-health advice changes.

“With the Government indicating that the ‘work-from-home’ advice is due to be lifted by September, public-health advice in relation to employee vaccination status is eagerly awaited,” Mr Deegan concludes.