Preventing sickness among employees
As an employer, you can try to prevent absenteeism due to illness among your employees. However, you are not allowed to ask your employees for data on their health. Neither are you allowed to collect these data in any other way. On this page you can read what you can and cannot do to promote the health of your employees.
On this page
Health data: special category of personal data
To prevent absenteeism due to illness, you as an employer may want to know how healthy your employees are. For example, how much they exercise, sleep and weigh. However, these are data about the health of your employees. According to the law, that is a special category of personal data.
It is prohibited to process special categories of personal data, unless a legal exception applies. Although such information may be important to you, privacy law does not provide an exception for the processing of health data for this purpose.
Employee consent does not apply
In this case, explicit consent from your employee cannot be an exception to the prohibition on processing health data. Your employee is (financially) dependent on you and may therefore feel obliged to give consent. Therefore, consent for this processing can never be ‘free’, as required by law.
Information from a wearable
As an employer, you may give your employees a wearable as a gift, such as a smartwatch, so they can get started on improving their fitness themselves. You can enter into a service agreement with a company to analyse the data from the wearables and make them transparent to employees. This, for example, makes it easy for them to see whether they are making progress.
However, you are not allowed to demand your employees wear the wearable and share the data with you and/or their colleagues. Neither are you allowed to receive data from the company that performs the analyses,
and your employees are not obliged to have their data analysed. The company may only perform analyses if employees have given explicit consent for this. The company must let your employees know in advance:
- which data are processed by the company;
- what the company does with those data;
- for what purpose the company processes the data;
- whether the company also transfers the data to other parties and, if so, to which parties.
Note: The company is not allowed to share the analyses with you, even if employees give their consent. When the company that analyses the data from the wearables subsequently provides these data to you, whether or not in anonymised form, this constitutes processing within the relationship between employer and employee. In that case, the consent is not valid.