Provides GDPR Art. 9(2)(b) and (h) guidance for processing employee health data in fitness-for-work assessments, occupational health surveillance, COVID testing, and absence management with data minimisation.
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Employee health data is among the most sensitive categories of personal data processed in the employment context. It falls under Art. 9(1) GDPR as "data concerning health," defined in Art. 4(15) as "personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status." Employers routi...
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Employee health data is among the most sensitive categories of personal data processed in the employment context. It falls under Art. 9(1) GDPR as "data concerning health," defined in Art. 4(15) as "personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status." Employers routinely process health data for absence management, fitness-for-work assessments, occupational health surveillance, workplace adjustments for disability, and return-to-work programmes. Each of these processing activities requires identification of a valid Art. 9(2) exception, strict data minimisation, and clear boundaries between what the employer needs to know (fitness/unfitness and any required adjustments) and clinical details (diagnosis, treatment, prognosis) that must remain with the occupational health provider.
| Exception | Article | Employment Application |
|---|---|---|
| Explicit consent | Art. 9(2)(a) | Rarely valid due to power imbalance; may apply for genuinely voluntary wellness programmes |
| Employment law obligations | Art. 9(2)(b) | Primary basis: processing necessary for carrying out obligations in employment, social security, and social protection law — to the extent authorised by national law with appropriate safeguards |
| Vital interests | Art. 9(2)(c) | Emergency situations where employee is physically incapacitated and health data is needed for emergency response |
| Health professional processing | Art. 9(2)(h) | Processing for preventive or occupational medicine, assessment of working capacity, medical diagnosis — by or under the responsibility of a health professional bound by professional secrecy |
| Public health | Art. 9(2)(i) | Public health threats (pandemic response) — must be based on national or EU law |
| Substantial public interest | Art. 9(2)(g) | Where national law establishes a substantial public interest basis, e.g., disability discrimination legislation requiring processing to assess reasonable adjustments |
This is the most commonly relied upon exception. It requires:
National implementations:
| Jurisdiction | Legal Basis | Scope |
|---|---|---|
| UK | DPA 2018, Schedule 1, Part 1, Para 1 | Processing necessary for employment obligations including health and safety duties, statutory sick pay, disability adjustments |
| Germany | BDSG Section 26(3) | Processing of special category data for employment purposes where necessary for exercising rights or obligations under employment or social security law |
| France | Labour Code Art. L.4624-1 et seq. | Occupational health surveillance; employer receives fitness/unfitness conclusion only, not diagnosis |
| Netherlands | UAVG Art. 30(1)(a) | Processing necessary for employment rights and obligations under law or collective agreement |
| Italy | D.Lgs. 81/2008, Art. 25 and 41 | Occupational health surveillance; competent doctor (medico competente) conducts assessments and communicates fitness judgment only |
Processing is permitted when carried out by or under the responsibility of a health professional subject to professional secrecy. This applies to:
Critical limitation: The health professional may share with the employer only the conclusion (fit/unfit/fit with adjustments) and not the underlying clinical details. The diagnosis remains confidential between the health professional and the employee.
What the employer needs: Dates of absence, whether the absence is certified, expected return date, any workplace adjustments required.
What the employer must not receive: Diagnosis, treatment details, prognosis, medication, mental health specifics.
Data flow:
Atlas Manufacturing Group Example: Atlas's sickness absence policy states that employees self-certify for absences up to 7 days and provide a fit note for absences exceeding 7 days. The HR system records absence dates and the fit/unfit conclusion only. The diagnosis field from fit notes is not entered into the HR system. If an employee's absence exceeds 4 weeks, a referral to occupational health is offered — the occupational health report to the employer addresses fitness, adjustments, and anticipated return date, but not clinical diagnosis.
Trigger: Safety-critical roles (drivers, machine operators, work at height), return from long-term absence, concerns about an employee's capacity to perform their role safely.
Data flow:
Art. 9(2)(h) application: The occupational health provider is a health professional bound by professional secrecy (GMC, NMC, or equivalent registration). The processing is carried out under their responsibility. They share with the employer only what is necessary for the employment decision.
Scope: Statutory health surveillance required for employees exposed to occupational hazards (noise, vibration, hazardous substances, ionising radiation, asbestos, lead).
Legal basis: Art. 9(2)(b) — legal obligation under national health and safety law implementing Framework Directive 89/391/EEC.
Key obligations:
Legal basis: Art. 9(2)(b) read with national disability discrimination law (UK: Equality Act 2010; EU: Framework Employment Directive 2000/78/EC).
Data minimisation principle: The employer needs to know:
The employer does not need: The specific diagnosis, medication, treatment history, or prognosis — unless the employee voluntarily shares this information to support the adjustment process.
Context: Many organisations implemented COVID-19 testing and vaccination status checking during the pandemic. Residual data and policies may remain.
Current obligations:
Atlas Manufacturing Group Example: Atlas collected COVID test results and vaccination status during 2020-2022 under Art. 9(2)(b) (UK health and safety legal obligation) and Art. 9(2)(i) (public health). Following the revocation of mandatory testing guidance in 2022, Atlas conducted a retention review and deleted all COVID testing data and vaccination records in March 2023, retaining only aggregate statistical data for occupational health reporting.
Description: Employer-offered wellness programmes including health risk assessments, fitness challenges, mental health support, and biometric screenings.
Lawful basis: Art. 9(2)(a) explicit consent — wellness programmes are the rare employment scenario where consent may be valid, because:
Conditions:
| Data Element | Permitted | Lawful Basis |
|---|---|---|
| Absence dates | Yes | Art. 6(1)(b) contract + Art. 9(2)(b) employment obligation |
| Fit/unfit conclusion | Yes | Art. 9(2)(b) employment obligation |
| Required workplace adjustments | Yes | Art. 9(2)(b) disability legislation |
| Occupational health referral correspondence | Yes | Art. 9(2)(h) health professional |
| Fitness-for-work certificates | Yes | Art. 9(2)(b) health and safety obligation |
| Data Element | Prohibited | Reason |
|---|---|---|
| Clinical diagnosis | Yes (unless voluntarily shared) | Not necessary for employment decisions |
| Treatment details | Yes | Not necessary; disproportionate intrusion |
| Medication information | Yes | Not necessary; may reveal conditions not relevant to work |
| Mental health counselling records | Yes | Processed under professional secrecy by health professional |
| GP/hospital records | Yes | No lawful basis for employer access |
| Genetic test results | Yes | Art. 9(1) + Art. 9(4) specific national restrictions |
| Role | Access Level |
|---|---|
| HR Manager (employee relations) | Absence dates, fit/unfit conclusion, adjustment requirements |
| Line Manager | Absence dates and expected return date only; no health details |
| Occupational Health Provider | Full clinical information (under professional secrecy) |
| DPO | Access to processing records and policy compliance; no individual health data |
| Payroll | Absence dates for statutory sick pay calculation only |
| IT | No access to health data content; system administration only |
| Authority | Case | Fine/Outcome | Key Issue |
|---|---|---|---|
| LfDI Hamburg (Germany) | H&M, 2020 | EUR 35,258,707.95 | Employer systematically recorded employee health details from return-to-work conversations, including diagnoses and family health issues |
| CNIL (France) | SAN-2021-015 | EUR 150,000 | Employer collected excessive health data during COVID screening beyond what was legally required |
| Garante (Italy) | Provvedimento 2022-0156 | Processing restricted | Employer required employees to disclose diagnosis on sickness absence forms |
| ICO (UK) | Enforcement notice, 2021 | Processing ordered to cease | Employer shared employee mental health data with line managers without necessity or consent |
| AEPD (Spain) | PS/00142/2022 | EUR 100,000 | Employer processed employee COVID vaccination status after legal basis expired |