Gesundheitsdaten am Arbeitsplatz

Answer to a notification for prior checking on education allowance (Case 2007-561)

Opinion of 11 October 2007 on the notification for prior checking regarding the "Checks on absences due to illness - Brussels, Luxembourg" case (Case 2004-226)

The purpose of the procedure for checks on absences due to illness by the Brussels and Luxembourg Medical Services is to ensure that an absence due to illness is justified and that its duration is in proportion to the nature of the illness.

The criteria for checks are: absences totalling 20 days or more over a two-month period, in the light of the diagnosis (if recorded in the medical certificate); and the proportionality of the absence to the nature of the illness. These criteria for checks are used to produce SERMED extracts.

The examining doctor examines situations on a case-by-case basis to decide whether a medical examination is warranted. During the medical examination, the examining doctor examines the data subject (where an examination is warranted by the medical condition alleged) and asks him questions. At the end of the examination, a document is signed by the examining doctor and the data subject and sent by secure means to the HRD. If the data subject considers the conclusions of the examining doctor to be unjustified, he may request that the matter be referred to arbitration by an independent doctor.

An Excel table is created and managed by the examining doctor for the medical monitoring on an individual and global basis of the population concerned. The table can be accessed by the medical officer and his secretariat only.

The EDPS has concluded that the processing operation does not appear to involve any infringement of the provisions of Regulation (EC) No 45/2001 provided that certain recommendations are taken into account, in particular:

• as regards data entered in SERMED and, specifically, the "comments" box, steps should be taken to ensure that no personal notes made by the doctor himself appear in the "comments" box unless such notes are necessary to enable the examining doctor to monitor absences. In this event, only the examining doctor should have access to the box in question.
• that the Commission give consideration to how long medical examination files for the purposes of checks should be kept in the light of the purposes of the processing operation.
• that the Commission look into the possibility of giving the data subject access to the Excel file without this entailing access to data relating to other persons or the doctor's personal notes.

Opinion of 13 September 2007 on the notification for prior checking regarding pre-employment and annual medical check-ups (Case 2007-348)
At the EMCDDA, the medical check-ups (pre-employment medical check ups and annual medical check ups) are carried out by a qualified medical doctor, carrying out the medical examination on behalf of the EMCDDA. The results of these medical check ups are communicated by the doctor to the medical officer, member of staff at the EMCDDA. The medical files are kept by the EMCDDA medical officer.

After examining the case, the EDPS concluded that there is no reason to believe that there is a breach of the provisions of Regulation 45/2001 providing that certain considerations are fully taken into account. Notably certain data in the medical questionnaire must be re-assessed in the light of the principles of adequacy, relevance, and proportionality for purposes of assessment of fitness for service and assistance in determination of limitations with respect to death or invalidity benefits for the first five years of service; the EMCDDA evaluates to what extent and for what purposes the content of a medical file needs to be kept and determines a conservation period concerning data relating to persons who have been submitted to a medical exam, but who then refuse employment; and that the EMCDDA reconsiders the procedure of communication of data relating to the medical exams undertaken with a private doctor to the financial services with the aim of reconciling the data subject's right to privacy and the obligations of the financial services.

Opinion of 10 September 2007 on the notification for prior checking on the "Management of the activities of the Medical Service in Brussels and Luxembourg, in particular via the SERMED computer application" (Case 2004-232)

• having regard to the particularly sensitive nature of the information included in SERMED, should remind persons having access to SERMED of the confidentiality requirement;
• should point out to SERMED users that the field "comment" must contain only administrative data;
• should remove the reference to the doctor's specialisation as indicated on the medical certificate in SERMED;
• should keep the EDPS informed of the introduction of the module facilitating access to information relating to the person concerned.