Practice Areas: Employment

Services: Abreu Helpdesk | COVID-19

Employer’s controlling powers on vaccination and other Covid-19 prevention measures

Following the current vaccination process and the consequent reduction in the number of new cases of SARS-CoV-2 infection, the Portuguese government has approved a progressive deconfinement plan, which aims to revive economic activity.

Although teleworking is here to stay, there is a need for employers to adopt measures to protect employees from SARS-CoV-2 infection in the workplace.

In this regard, one can ask whether or not employers may require proof of vaccination from their employees. First, it should be noted that vaccination data is considered personal data relating to one’s health, which constitutes a special category of data, subject to a reinforced legal data protection regime.[1]

On the other hand, vaccination against SARS-CoV-2 is not mandatory in Portugal. Therefore, and barring any future legislative change, employers may not require job applicants and/or their employees to provide proof of such vaccination as a requirement for access to their premises or even for access to a specific job position.

Without prejudice to the specificities inherent to activities with high spread risk, which may require a different understanding, the same should be applied to Covid-19 testing in the work place.

Notwithstanding the above, the national legal system allows the collection of health information within the scope of occupational health[2], which will allow the adoption of a series of restricted measures, among which can be highlighted the employee’s temperature measurement.

In summary, the need to protect against SARS-CoV-2 infection does not legitimate the unrestricted adoption of measures that may indicate the presence of the virus.

Given the profound changes that the pandemic has imposed in the labour context, employers should closely follow the most recent guidelines of the Directorate-General of Health and the National Data Protection Commission and analyze, on a case-by-case basis, the best solutions to ensure the return of employees to the workplace, such should imply, the reinforcement of hygiene care in the workplace and the adoption of new organizational measures.

[1] Under the Article 9.º, n.º 1 e n.º 2 b) e h), of EU Regulation 2016/679 of 27 April 2016 – General Data Protection Regulation; and under the Article 28.º, n.º1 da Law n.º 58/2019, of 8 August.

[2] Under the general terms defined in the Occupational Health and Safety Law, Law n.º102/2009, of 10 September, as amended (Law n.º 79/2019, of 2 of September).