Employers are entitled to request mandatory testing for their employees to detect COVID-19 cases on work premises
The Bulgarian Commission on Personal Data Protection (the “CPDP”) has recently issued its first statement on the employers’ obligation to secure health and safety conditions at work during the COVID-19 outbreak. The CPDP takes the view that mandatory testing of all employees could be justified by the employer’s legitimate interest to limit the coronavirus spread as otherwise the employer may suffer economical losses and interruptions in the ongoing working process.
The CPDP’s statement is not the only document required for employers that want to implement mandatory testing for their employees. Employers which wish to perform mandatory testing for COVID-19 contamination have to prepare balancing tests that prove the employer’s legitimate interest. By those balancing tests, the employers will be able to prove that their economic interests override the interests and the legal rights and freedoms of their employees.
Once its legitimate interest is categorically established, the employer is entitled to issue an order whereby all employees are subject to mandatory testing in a licensed laboratory by medical experts. The CPDP rules that only the competent medical authorities which are respectively bound by their professional secrecy obligation shall be allowed to conduct the testing. This approach safeguards the employees’ rights and interests. Therefore, employers are not allowed to organize internal testing for their employees – for example, by using the so called “quick tests” for diagnostics by representatives of the employer on the work premises.
The employer is not allowed to access employees’ personal data – neither during the ongoing testing or once the results are ready. This prohibition applies regardless that the employer covers the expenses related to the mandatory testing.
Employers are authorized to lawfully process sensitive personal data (the employees’ health status information) if there is a legal ground for such processing. This would be the case if some of the employees test positive for the coronavirus infection and provide the employer with sick leave documents to justify their absence from work.
The CPDP bases its interpretation on the employers’ general obligation under the Bulgarian employment law to secure health and safety conditions on the workplace. This obligation is broadly regulated in the Bulgarian Labor Code and the Bulgarian Health and Safety Conditions at Work Act. Therefore, employers will still be allowed to conduct mandatory testing for their employees even when the emergency epidemic situation in Bulgaria is revoked for as long as the employer succeeds in proving its overriding legitimate interest to do so.
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