The nationwide recommendation to work remotely ended on 15 October 2021, and many employers are keen for their employees to return to the office over the next few weeks. The return to the office does, however, require some considerations from the employers. Two key issues that employers will no doubt face are the vaccination status of returning employees and new remote working practices.
Can you ask your employees if they are vaccinated?
The Finnish Data Protection Ombudsman has ruled that vaccination data is considered to be sensitive health data. The return to the office does not, as such, entitle employers to collect and process this kind of sensitive health data. Basically, this means that employers are not allowed to ask their employees to provide a vaccination certificate or any other kind of COVID-19 passport unless the employer has a valid reason for requesting such data.
Finnish law includes an exhaustive list of proper grounds based on which employers are entitled to ask their employees to submit their sensitive health data. These grounds relate primarily to providing employees with sick pay or other health-related benefits and to establishing whether an employee had a valid reason to be absent from work. The employer’s interest in limiting access to the workplace cannot be considered a valid reason for collecting and processing vaccination data.
As such, employers typically do not know which of their employees are vaccinated even after they have returned to the office, unless the employees disclose their vaccination status at their own initiative. From the perspective of occupational health and safety, employers should consider updating their risk assessment when their employees return to the office.
Can you establish new remote working practices?
The return to the office does not prevent employers from implementing new remote working practices. Employers should keep in mind, however, that company-specific remote working practices must be discussed with the personnel or their representatives during cooperation consultations if the company is bound by a cooperation obligation.
Employers must take several different factors into consideration when drafting new remote working policies or agreements. They should, for example, include provisions regarding when and how employees should be available, occupational health and safety matters, potential reimbursements, data protection and the use of company equipment.
During the pandemic, employers have accumulated a significant amount of practical experience on which kinds of remote working practices work and which do not. One key consideration employers must keep in mind when drafting new (potentially hybrid) policies is the equal treatment of their employees.
Borenius’ lawyers are available to assist in addressing any questions you may have regarding the return to the office after the pandemic.