IP - 07121-1/2020/1242

IP - 07121-1/2020/1242
Authority:	IP (Slovenia)
Jurisdiction:	Slovenia
Relevant Law:	Article 58 GDPR Article 49(1)(7) ZVOP-1 Article 2 ZInfP Article 15(5) ZIUPDV
Type:	Advisory Opinion
Outcome:	n/a
Started:
Decided:	28.07.2020
Published:	28.07.2020
Fine:	None
Parties:	n/a
National Case Number/Name:	07121-1/2020/1242
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	Slovenian
Original Source:	IP (in SL)
Initial Contributor:	n/a

The Slovenian DPA (IP) opined that an employer may ask the place of employees' intended holidays only if this meets the requirements of Article 15(5) ZIUPDV, national law on the dealing with the pandemic.

English Summary

Facts

A request for opinion was submitted on whether the employer can (a) ask the employee about the place of intended holidays, (b) ask the employee to provide a certificate of negative test for COVID-19 after the quarantine, and (c) measure the employees' temperature which would maintain in special records.

Holding

IP issued its opinion as follows:

(a) The collection of -only- the place of holidays is only permitted if it falls under Article 15(5) ZIUPDV (e.g. if it's a country with high COVID-19 risk). Consent would most likely be an invalid legal basis;

(b) + (c) have been answered in Opinions no. 07121-1/2020/387 and 7121-1/2020/383.

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English Machine Translation of the Decision

The decision below is a machine translation of the Slovenian original. Please refer to the Slovenian original for more details.

Date: 28.07.2020
Title: Employer's control of leave, body temperature and infection with the new coronavirus
Number: 07121-1 / 2020/1242
Subject matter: Employment, Legal basis, Medical personal data
Legal act: Opinion

We received your questions from the Information Commissioner (IP) on 15 July 2020:

whether the employer can ask the worker to inform him in advance where he will be on holiday (to protect against the new coronavirus infection),
whether the employer may require the worker to provide him with a certificate of negative test for COVID-19 after the quarantine has been completed, and
whether the employer can measure the workers' temperature and keep special records.

On the basis of the information you have provided to us, in accordance with Article 58 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data Directive 95/46 / EC (hereinafter: the General Regulation on Data Protection), point 7 of the first paragraph of Article 49 of the Personal Data Protection Act (Official Gazette of the Republic of Slovenia, No. 94/07-UPB1, hereinafter ZVOP-1) and Article 2 of the Information Commissioner Act (Official Gazette of the Republic of Slovenia, No. 113/05, hereinafter ZInfP) provides us with our non-binding opinion regarding your questions.
1. In principle, the employer has no legal basis for the systematic collection of data on the intended location of the leave by the employee. With regard to the implementation of Article 15 of the ZIUPDV, the employee must submit a written statement to the employer, in the case of departure to the country on the red list, for the reasons referred to in paragraph 5 of Article 15 of the ZIUPDV, no later than one day before departure. it follows that he is leaving for the country on the red list due to the aforementioned personal circumstances.

2. The employer may only conditionally require the worker who has completed the quarantine to provide him with proof of infection with the new coronavirus, in accordance with opinion IP no. 07121-1 / 2020/387, already published on the IP website.

3. The employer may only conditionally measure and record the body temperature of workers in accordance with opinion IP no. 7121-1 / 2020/383, already published on the IP website.

Explanations:

1. In the case of employer control in the sense of systematic and documented obtaining information on the location of the intended use of leave, there is no appropriate legal basis for such processing of personal data in the General Data Protection Regulation, ZVOP-1 or the Employment Relationships Act (ZDR- 1). Namely, more detailed information on the use of leave (planned location, mode of travel, social aspects, personal reasons, costs, planned activities, etc.) is not substantively and directly related to the rights and obligations arising from the employment relationship. The employer may only collect the above statement, and only if it is a case as defined in paragraph 5 of Article 15 of the ZIUPDV.

The consent of the worker, as a generally possible legal basis, would most likely not be possible in such a case. On this, see IP Guidelines on the Protection of Personal Data in Employment, pages 6 and 8, available at this link:

https://www.ip-rs.si/fileadmin/user_upload/Pdf/smernice/Smernice_-_Varstvo_OP_v_delovnih_razmerjih_verzija_1.1_koncna.pdf.

2nd and 3rd already published opinions are available at this link: https://www.ip-rs.si/index.php?id=897.

Best regards,
Prepared:
mag. Urban Brulc, Univ. dipl. right.
independent IP consultant
Mojca Prelesnik, B.Sc. dipl. right.
Information Commissioner