Can I request information about a job candidate’s health condition to assess their suitability for the team?
Understanding of the Legal Question
The question pertains to the legality under the GDPR of requesting health data from job candidates as part of their evaluation for suitability within a team. The core issue relates to the processing of special categories of personal data (health data), and whether such processing can be legally justified under certain conditions of the GDPR.
The goal inferred is to ascertain how the employer can appropriately collect and process health information within the legal framework provided by the GDPR, mainly focusing on lawfulness, fairness, transparency, and the specific provisions related to sensitive data.
Plan for the Junior Lawyer:
Note: The junior lawyer is what we call a subsystem of Hotseat that completes helper tasks
Understand Core GDPR Concepts:
Familiarize yourself with the GDPR’s key principles regarding data processing, specifically the lawfulness of processing under Article 6, and special categories of personal data under Article 9.
Note the definitions of ‘personal data’ and ‘processing’ as mentioned in Article 4(1) and (2).
Special Categories of Personal Data:
Examine Article 9, which provides rules on processing special categories of data, which includes data concerning health. Understand the prohibitions and the exceptions that allow such processing.
Lawfulness of Processing:
Review the conditions under which processing is considered lawful as outlined in Article 6.
Consent:
Analyze the provisions regarding the data subject’s consent, particularly in the context of employment, as outlined in Article 7.
Rights of the Data Subject:
Explore the rights of the data subject pertaining to data concerning health per Articles 15 through 22, with attention to data subjects’ rights to object under Article 21 and rights related to automated decision-making and profiling under Article 22.
Employment Context Specifics:
Refer to Article 88, which permits Member States to provide for specific rules for data processing in the employment context.
Data Protection Impact Assessment:
Consider whether a Data Protection Impact Assessment (DPIA) as prescribed in Article 35 might be required due to the inherent risks with processing health data.
General Provisions and Additional Exemptions:
Be aware of the possibility of additional exemptions or more specific provisions that can affect the processing of health-related data for employment purposes, which could be present in Recitals that contextualize the Articles mentioned above.
Engage with the Supervisory Authority:
If uncertainty remains after analyzing the GDPR Articles, consider initiating a dialogue with the relevant supervisory authority under the consultation procedure in Article 36 for prior consultation.
Key GDPR Definitions for Context:
‘Personal data’: Information related to an identified or identifiable natural person (Article 4(1)).
’Processing’: Any operation performed on personal data (Article 4(2)).
’Data concerning health’: Personal data related to the physical or mental health of a natural person (Article 4(15)).
’Consent’: A freely given, specific, informed, and unambiguous indication of the data subject’s wishes (Article 4(11)).
Notes on Legal Ambiguities and Possibilities:
The legal question assumes the employer’s interest in health data is directly related to assessing team suitability rather than compliance with employment law or health and safety obligations. However, if the employer’s intention is linked to legal compliance, the pathways offered by Article 9(2)(b) should be investigated. Additionally, it should be considered whether Member State laws (as allowed under Article 88) provide specific conditions or additional contexts for processing employee data, which may include health data assessments for employment purposes.
Question Clarity Rating
Somewhat clear
Clarity Rating Explanation
The original question provides a clear intention of considering a candidate’s health condition for suitability assessment. However, it lacks specifics on legal basis for processing health data under GDPR, consent, and data security measures, leading to assumptions about the user’s compliance with GDPR requirements.