Due to the complex situation caused by the pandemic, the authorities of each locality are making efforts to enforce appropriate policies to bring socio-economic activities to a “new normal” as soon as possible. Currently, the “Green Card” is a top consideration for managing and limiting the risk of infection and allowing people who have been fully vaccinated to return to normal activities soon. For businesses, this is good news like “flashes of light at the end of the tunnel”. This helps businesses return to usual activities. Therefore, there are many businesses that are eager to collect vaccination information of workers to make an appropriate plan for the near future. This article shall explain what businesses need to keep in mind before collecting information from employees to avoid potential risks.
Obligation to provide information when signing labor contracts
According to the provisions of the Labor Code, the employees must provide truthful information to the employer about their full name, date of birth, gender, place of residence, education level, vocational skill level, confirmation of health status and other information useful for the conclusion of the labor contract as requested by the employer.
“Information useful for the conclusion of labor contracts” could be quite broad and include information related to the vaccination of employees against Covid-19. Therefore, during this time, if a new labor contract is signed, the employer may consider requiring workers to provide vaccination information in the contract.
Right to confidentiality of personal information
While the employer has the right to request for employee’s information when entering a new labor contract, providing information is not considered as an obligation of the employee who signed the contract and is working for the employer currently. Employee, unless the employment contract previously regulated such obligation, is not obligated to provide information about vaccination. However, due to the pandemic, it is difficult for employers to anticipate and include obligations in labor contracts that are compatible with this dynamic situation.
According to the current law, personal information of the employee is the right of the employee and is protected by law. The Civil Code stipulates that:
“The collection, retention, use and disclosure of information related to private life or personal secrets must be agreed by the person, the collection, retention, use and disclosure of information related to family secrets must be agreed by family members, unless otherwise stated by law.”
As such, the employer cannot obligate the employee to provide information. The ‘Law on Cyber Information Security’ and the ‘Law on Information Technology’ laid down relevant provisions:
Law on Cyber Security – Article 17: Collecting and using personal information:
“1. Organizations and individuals processing personal information shall have the following responsibilities:
- a) Collect personal information after obtaining the consent of the subject to whom the personal information belongs and informing the scope and purpose of the collection and use of such information.
- b) Personal information collected shall be used only for the original purposes as agreed by the subject. Consent of the subject to whom the personal information belongs must be obtained before using such information for any other purpose.
- c) The information shall not be provided, shared or distributed for collection, assessment, and control by third parties, unless the consent of the concerned subject is obtained or such information is requested by the competent state agency.”
Information Technology Law – Article 21. Collecting, processing, and using personal information in the network environment:
“1. Organizations and individuals collecting, processing, and using other people’s personal information in the network environment must obtain approval by that person, unless otherwise prescribed by law.”
How to collect vaccination information from workers?
As stated above, unless the labor contract signed with the employee specifies the information about vaccination, the employer must receive the consent of the employee.
In addition to receiving consent for collecting information from employees, provisions of the ‘Civil Code’, the ‘Law on Cyber Information Security’, the ‘Law on Information Technology’, and other legal documents stipulate that employers who collect information from employees must notify such employees of the following contents:
- Purpose of information collection,
- Methods of information collection,
- Scope of use of information,
- Duration of information retention (and)
- Third parties with which information can be shared.
State agencies are still drafting provisions concerning the issue of “green card” – full vaccination certification. Hence, regulations granting employers the right to require workers for proof of vaccination to be able to work directly at the business premises cannot be ruled out. However, until there are specific guidelines and regulations from the competent authorities, businesses and employers still need to follow the rules stated in this article to avoid unnecessary legal risks related to the information provided by the employee.
Published time: 24/09/2021
The article is based on applicable law at the time noted as above and may no longer be appropriate at the time the reader approaches this article as the applicable law has changed and the specific case that the reader wishes to apply. Therefore, the article is only for reference.