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Employee Health Data in European Law : Privacy is (not) an Option?

Enqvist, Lena and Litins'ka, Yana LU orcid (2022) In Nordic Journal of European Law 5(1). p.40-66
Abstract
While there are many feasible reasons for employers to process employee health data, the protection of such data is a fundamental issue for ensuring employee rights to privacy in the workplace. The sharing of health data within workplaces can lead to various consequences, such as losing a sense of privacy, stigmatisation, job insecurity and social dumping. At the European level, the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and EU General Data Protection Regulation (GDPR)–two interconnected instruments–offer the most enforceable protection of employee health data. The article analyses the limits of employees’ right to privacy regarding health data, as delineated by the ECHR and GDPR. Using three fictive... (More)
While there are many feasible reasons for employers to process employee health data, the protection of such data is a fundamental issue for ensuring employee rights to privacy in the workplace. The sharing of health data within workplaces can lead to various consequences, such as losing a sense of privacy, stigmatisation, job insecurity and social dumping. At the European level, the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and EU General Data Protection Regulation (GDPR)–two interconnected instruments–offer the most enforceable protection of employee health data. The article analyses the limits of employees’ right to privacy regarding health data, as delineated by the ECHR and GDPR. Using three fictive examples, we illustrate how the level of protection differs in these two instruments. In particular, we show that the protection of health data offered by the GDPR is seen as an objective act of processing at the time it is carried out, where the actual impact caused by the processing on private life is not considered. On the contrary, the ECHR’s applicability and offered level of protection in the employment context depend on subjective factors, such as the consequences of sharing the data. (Less)
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author
and
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
Human rights, Public law, GDPR, European Convention on Human Rights (echr), Right to privacy, Employee, Medical law, Health data, Infectious disease, Infectious disease control, Mental health, Data processing, Data protection, Mänskliga rättigheter, Offentlig rätt, GDPR, ECHR, Rätt till privatliv, Anställd, Medicinsk rätt, Hälsodata, Smittsam sjukdom, Smittskydd, Psykisk hälsa, Databehandling, Dataskydd
in
Nordic Journal of European Law
volume
5
issue
1
pages
27 pages
ISSN
2003-1785
DOI
10.36969/njel.v5i1.24498
project
Improved preparedness for future pandemics and other health crises through large-scale disease surveillance
language
English
LU publication?
yes
id
dd9d6778-8bd2-4ea3-acf2-49676ff29480
date added to LUP
2022-08-08 20:39:51
date last changed
2023-04-03 10:41:38
@article{dd9d6778-8bd2-4ea3-acf2-49676ff29480,
  abstract     = {{While there are many feasible reasons for employers to process employee health data, the protection of such data is a fundamental issue for ensuring employee rights to privacy in the workplace. The sharing of health data within workplaces can lead to various consequences, such as losing a sense of privacy, stigmatisation, job insecurity and social dumping. At the European level, the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and EU General Data Protection Regulation (GDPR)–two interconnected instruments–offer the most enforceable protection of employee health data. The article analyses the limits of employees’ right to privacy regarding health data, as delineated by the ECHR and GDPR. Using three fictive examples, we illustrate how the level of protection differs in these two instruments. In particular, we show that the protection of health data offered by the GDPR is seen as an objective act of processing at the time it is carried out, where the actual impact caused by the processing on private life is not considered. On the contrary, the ECHR’s applicability and offered level of protection in the employment context depend on subjective factors, such as the consequences of sharing the data.}},
  author       = {{Enqvist, Lena and Litins'ka, Yana}},
  issn         = {{2003-1785}},
  keywords     = {{Human rights; Public law; GDPR; European Convention on Human Rights (echr); Right to privacy; Employee; Medical law; Health data; Infectious disease; Infectious disease control; Mental health; Data processing; Data protection; Mänskliga rättigheter; Offentlig rätt; GDPR; ECHR; Rätt till privatliv; Anställd; Medicinsk rätt; Hälsodata; Smittsam sjukdom; Smittskydd; Psykisk hälsa; Databehandling; Dataskydd}},
  language     = {{eng}},
  month        = {{08}},
  number       = {{1}},
  pages        = {{40--66}},
  series       = {{Nordic Journal of European Law}},
  title        = {{Employee Health Data in European Law : Privacy is (not) an Option?}},
  url          = {{http://dx.doi.org/10.36969/njel.v5i1.24498}},
  doi          = {{10.36969/njel.v5i1.24498}},
  volume       = {{5}},
  year         = {{2022}},
}