Data protection-compliant handling of sick notes

from R. Olschewski

The handling of certificates of incapacity for work in companies poses particular challenges for companies and data protection officers due to the special sensitivity of the information. As the issuing body, i.e. the (specialist) doctor, is identifiable, it may be possible to draw conclusions about the nature of the illness or treatment.

There are still no clear legal or supreme court requirements in terms of an employee data protection law on this issue, even though the Federal Labor Court ruled in a recent decision from 14.11.12 (5 AZR 886/11) on prompt proof of incapacity for work. The provisions of the law on the payment of wages on public holidays and in the event of illness, in particular Section 5 EFZG, also do not help with the question of data protection-compliant handling.

According to the current activity report of the NRW State Data Protection Commissioner (LDI NRW), the supervisory authority states (p. 65) that certificates of incapacity for work should not be sent to the HR department via the line manager, but must be sent directly to the HR department by the employee. The supervisory authority does not consider it necessary for the certificate to be sent to the line manager first. In their opinion, it should be sufficient if the HR department in turn informs the line manager of the sick employee's incapacity to work and - if known - the supposed duration of the illness. The frequently encountered practice of sending certificates of incapacity for work via the line manager or the departmental secretariat is not compliant with data protection regulations in the opinion of the highest data protection officer of the state of North Rhine-Westphalia. The justification for his activity report states that references to the type of illness, e.g. via the attending physician, should be avoided.

It is therefore advisable to agree and announce a binding internal company regulation so that the employee is not left in any doubt as to whom he/she must provide this proof in the event of illness. Whether advance notification by telephone to the specialist department is permissible was not the subject of the LDI NRW's decision. However, for the reasons mentioned above, such a notification is likely to be unproblematic.

Of course, the employee must also report back to work when he or she is healthy again; this should be done with both the HR department and the line manager.

Further information:
#ldi.nrw.de/mainmenu_Service/submenu_Reports/Content/21_DIB/DIB_2013.pdf