Italian Data Protection Authority (the so-called “Garante”) Press Release of 2nd March 2020: public and private entities must follow the instructions of the Ministry of Health and the competent authorities.
The Italian Data Protection Authority issued a press release in response to numerous queries received from public and private bodies regarding the possibility of collecting, when registering visitors and users, information about the presence of Coronavirus symptoms and the person’s recent movements, as a measure to prevent spreading of the disease; as well as from public and private employers about obtaining a “self-certification” from employees declaring the absence of flu symptoms and other private matters.
On this point, the Garante clarifies that “employers must refrain from gathering, a priori and in a systematic and generalized way – including specific requests to the individual worker, or non-consensual investigations – information on the presence of any flu-like symptoms in the worker and his closest contacts“.
The task of preventing the spread of the Coronavirus must in fact be carried out, the Garante reminds us, by persons qualified by the authorities to exercise such functions.
And the employer is not one of them, clearly.
The Garante goes on the remind us however that the duty of the worker to report to the employer any situation of danger to health and safety in the workplace remains unchanged.
In conclusion, the Garante “invites all data controllers to scrupulously follow the instructions provided by the Ministry of Health and the competent authorities for the prevention of the spread of Coronavirus, without resorting to autonomous measures that provide for the collection of data on the health of users and workers that are not provided by law, or ordered by the competent bodies“.
The emergency measures adopted by the Government to combat the Coronavirus do not therefore legitimize private employers to carry out indiscriminate checks that could invade the privacy of employees or visitors.
In short, it is confirmed that there is no provision that gives the employer independent powers to introduce measures of containment, nor has the Legislator introduced any waiver from the general principles of Art. 5 of the Workers Statute, which prohibits checks by the employer on suitability and disability of an employee, due to illness or accident. Violation of this rule entails criminal sanctions (Article 38 of the Workers Statute). Furthermore, Legislative Decree 81//2008 requires that an authorized specialist doctor supervises the health of employees.