Up Again: Privacy and data

Can an employer carry out temperature monitoring and other health checks on employees and visitors prior to them entering work premises?

Generally, no. The collection of health data on employees in Denmark is subject to several restrictions in the Danish Act on the use of Health Data etc. on the labour market; hence initiating temperature monitoring is unlikely to be practically useful. In any case, we do not recommend initiating temperature monitoring (or similar health checks) of employees without seeking prior legal advice.

Can an employer ask employees and visitors to complete a questionnaire on whether they are experiencing typical COVID-19 symptoms, have been in contact with an infected individual, or recently travelled to high risk countries?

Asking employees whether they are experiencing typical COVID-19 symptoms is subject to the same restrictions as temperature monitoring stated above.

Asking employees whether they have been in contact with an infected individual or have recently travelled to high risk countries is generally allowed.

Instead of initiating any of the above, employers may consider issuing general personnel policies requiring employees experiencing symptoms to stay at home.

Can an employer require their employees to notify them if they or a member of their household has contracted COVID-19, or that they have the antigen?

Generally, employers in Denmark can only require employees to disclose (and document) whether they are ill. Employers may not, with certain exceptions, require employees to disclose which illness they have been affected by.

An exception to this rule is that employers will need to know whether their employees are or have been affected by COVID-19 to exercise the expanded right to reimbursement of sickness benefits due to COVID-19 available in Denmark.

Employers may consider issuing personnel policies requiring employees to stay at home if they or a member of their household have contracted COVID-19.

Can an employer tell their employees that a colleague may have potentially contracted COVID-19?

No, as a rule, the employer may not disclose the name of individuals who have potentially contracted COVID-19.

However, the Danish Data Protection Agency has stated that disclosing such information may be allowed in specific circumstances if doing so is strictly necessary for compelling reasons (e.g. to mitigate the spread of COVID-19).

Can an employer share information with a health authority about COVID-19 cases they become aware of?

From a practical point of view, this will often be allowed if the public authorities have requested employers to share such information. Generally, such disclosure must comply with the rules of the General Data Protection Regulation, but the Danish government has issued several ministerial orders allowing or obligating employers to disclose COVID-19 related information if the public authorities have requested them to do so.

Currently, employers are neither obligated nor allowed to disclose information about COVID-19 cases without being invited or requested to do so.

Can an employer send employees’ health data to one of their affiliates outside the EEA or otherwise in another jurisdiction?

Generally, no. Transferring health data constitutes a processing of sensitive personal data and must comply with one of the exceptions found in Article 9(2) of the GDPR. Under certain circumstances, the exceptions in Article 9(2) may apply but such exceptions would always be subject to case by case assessments. Therefore, we recommend seeking legal advice before initiating such transfers.

Can an employer monitor how employees move around the workplace to help keep social distancing rules?

Yes, however, subject to certain restrictions and conditions.

From a general point of view, employers may monitor employees at the workplace, but doing so must comply with both Danish employment law and Danish data protection law. Furthermore, specific types of monitoring (e.g. location tracking and CCTV surveillance) are subject to additional restrictions. Therefore, we highly recommend seeking legal advice before initiating monitoring of employees.

Does an employer need to comply with any other GDPR principles or local privacy laws, when collecting data for the purpose of tackling COVID-19?

Yes. Other than the GDPR, the Danish Data Protection Act may apply. Furthermore, processing health data on employees may be subject to the Danish Act on the use of Health Data etc. on the Labour Market.

In addition, specific rules may apply to certain processing activities (e.g. sharing data for scientific studies, etc.).

What are the risks if I am in breach of the GDPR or local privacy laws?

The GDPR and Danish privacy laws are generally enforced by the Danish Data Protection Agency. Enforcement actions may include fines, damages and other actions set forth in the GDPR.

We do, however, expect the Danish Data Protection Agency to take a relatively light approach to minor deviations from privacy laws if such deviations may be justified for compelling reasons (e.g. to mitigate the spread of COVID-19).

In addition to the above, unlawful monitoring of individuals (including employees) may in some circumstances be subject to criminal liability.

Breach of privacy laws in an employment context may also constitute a violation of employment laws resulting in legal actions taken by the employee (or typically a trade union on behalf of the employee).