Looking for a job in times of COVID-19
Looking for a job in times of COVID-19
Looking for a job in times of Covid-19 can not only affect our health, but it can also impact our hiring.
can also have an impact on our hiring.
From different sectors, there are warnings of practices carried out by employers who are asking applicants for information on their health related to COVID-19.
From our office in Valenciawe inform about the limits regarding the information that would be allowed to be requested in a job interview or in an employment relationship and the impact that this would have in the matter of data protection.
Data Protection
The Organic Law 3/2018, on Personal Data Protection and guarantees of digital rights (LOPD-GDD) qualifies health data as special category data, which has a different legal regime than other personal data.
Thus, the EU Regulation 2016/679 (GDPR) also regulates them as special category data, being expressly prohibited their processing, provided that the express consent of the data subject is not obtained.
Obtaining the consent of the data subject for the processing of this data will not be sufficient if it does not meet the requirements for its legality, such as that it has been expressed in a voluntary, free, specific, informed and unambiguous manner.
Companies and COVID-19
In the case of the workplace, the protection of personal data is an obligation for companies with respect to their employees and customers, and if they deal with health-related data, they must be even more scrupulous in complying with the regulations.
As a result of the global pandemic of COVID-19, in the world of work, specifically in the area of hiring, practices have been detected which, in the eyes of people, could have some kind of justification based on prevention, even fear of contagion of the disease, but which have no legal basis to support them.
Selection process
In a hiring process, the company cannot request, as a requirement for access to a job offered, that the applicant must state whether or not he/she has contracted the COVID-19 disease.
The reason is because the applicant is not yet part of the personnel hired by the company, and therefore, the company could not exercise over him the specific obligations or rights in terms of occupational risk prevention, among which the right to health is included.
In addition, the consent of the person concerned would not be considered lawful because it could not be given freely, since it would be conditioned by the need to obtain the job.
Illegal information
In no case, obtaining this information would be considered necessary for the formalization of the employment contract, and on the contrary, in any case, it would be considered a violation of personal data, since the principle of data minimization would not be respected, nor the purpose of the processing.
It is important to point out that in this case, the practices that violate personal data not only come from the companies, but are also propitiated by the applicants, since they include in their résumé the health data of not being infected with the virus (or, failing that, having antibodies).
This circumstance must be taken into account by the companies, since they are obliged to destroy this information, with the aim of not carrying out a selection process in which discriminatory situations are generated by knowing this health data, which, as has been said, is irrelevant to access the job, as well as illegal in obtaining consent and purpose.
If you need advice on data protection contact Business Adapter here
Legal Department Business Adapter