Sickness absence is a concern for all employers. It's common practice that an employer will insist that an employee who has taken sick leave for a specific amount of time submits a medical cert that outlines the nature of their illness.
A common question is whether an employer has the right to know the nature of an employee’s illness. This comes to the fore when the medical certificate provided is vague in detail.
The key consideration is balancing the employer’s need to know this information against the potential Data Protection implications associated with the employee’s personal data.
The Data Protection Commissioner (DPC) has considered this question and provided the following guidance.
The issue arose when a Department of Education policy was challenged by an employee. The policy stated that a medical certificate would only be acceptable if it highlighted the specific nature of the illness. When the employee escalated this matter to the DPC, the Department informed the Commissioner that this was required as they have a duty of care to employees and students not to expose them to health & safety risks.
The Commissioner accepted that “in certain very specific circumstances a doctor may be legally obliged to report certain illnesses to an employer for health & safety reasons and we recognise the need for this practice, particularly in the case of contagious diseases. However, any general practice of requiring all employees to specifically disclose their condition or illness to account for their sick absences from work does give rise to serious concerns from a data protection perspective as it does not adequately protect the sensitive personal data of those employees who may have an illness/condition which they consider private or sensitive.”
What an employer is entitled to know
Basically, the DPC stated that only in exceptional circumstances can an employer insist on knowledge of the nature of the medical condition. Aside from this, they're only entitled to know the following:
(a) That the employee is unfit to work.
(b) How long they will be unfit for.
(c) When they're medically fit to return.
What an employer might be entitled to know
As per the findings of the DPC, an employer may be entitled to know the nature of an illness where there are specific health & safety concerns associated with the employee returning to work.
The DPC specifically gave the example of contagious disease and given the transmission rate of COVID-19, employers can insist on requiring employees to report a positive COVID-19 diagnosis.
Furthermore, employers in construction, for example, would be entitled to know the nature of an employee’s injury if it were a back injury and that employee worked in a physically demanding role.
As such, the question needs to be considered on a case-by-case basis. The general principle is that an employer does not have an overarching right to know the nature of an employee’s illness.
Therefore, commerciality is a big factor in this argument. The employer must have strong grounds for requiring further information on an employee’s illness. This would include the potential of significant risk to the business, the customers and/or clients, and the service itself.
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