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Medical certificate of having passed COVID-19, is it legal to ask for it?

In some countries, especially in Europe, the confinement gave way to the reduction of cases of virus infection, after the practice of social distancing, in these places have gradually resumed some daily and commercial activities, even the tourism sector has been launched and many companies in various fields have opened their physical doors to receive their employees again.

In order to operate, they have implemented the necessary hygienic and safety standards. and, in addition, there is the proposal of a controversial new resource, still under discussion: the medical certificate of having passed the COVID-19 o immunity passportThe guarantee endorsed by a health specialist who assures that the person has had the virus and therefore has antibodies against it. 

In accordance with the General Regulations of Data Protection of the European Unioninformation related to a person's health is prohibited, except when such information is of a personal nature. essential public interest and as long as the benefit of knowing the data is proportional to the objective pursued. For this reason, in countries such as Spain, companies and institutions should analyze the situation in depth and ensure that as many guarantees as possible are preserved.

The tourism sector has been impacted by the economic effect of the pandemic.. However, it has begun to activate functions in some countries where, little by little, the confinement measures have been relaxed, but at the same time strict controls have been established for entry into their territory. Such is the case of Puerto Rico, which requires a negative test for the virus during the first 72 hours of arrival, while Tahiti and Bora Bora require a medical certificate of having passed the COVID-19. Hawaii will also require a negative test or, failing that, will isolate visitors in quarantine for 14 days, while entry to Bermuda requires the submission of the test 72 hours prior to arrival on the island and at the time of arrival. Likewise, to enter China it will be necessary to take the test five days before boarding the plane to that destination.

When it comes to company personnel, the legality of requesting a medical certificate of having passed the COVID-19 or a confirmation of infection test is again on shaky ground.

On the one hand, the test is essential to avoid putting more people at risk. and even those who are ill, but on the other hand it can go against the privacy of the person's state of health. In Spain, for example, a Supreme Court ruling (January 2019) establishes as a general rule that this type of studies in the workplace are voluntary for employees, unless they are extremely necessary to check whether the state of health of a worker may represent a danger to himself and his colleagues. In the pandemic scenario the request for these screening tests would be, at least in that country, justifiable.

In this pandemic context this qualifies as corporate responsibility for its employees. If the company does not guarantee the collective that the environment is safe and there is massive contamination, the company is responsible. Therefore, the safe environment of COVID-19 within the current content, could justify the action as an extraordinary measure and for the emergency situation that this has generated, to guarantee the work environment.  

Case: Venezuela

In Venezuela, according to the Official Gazette of June 1 of the current year, as followswhich summarizes the situation in the national territory since March 13, when the global pandemic virus was detected in the country, and following the timeline, citizens went through a mandatory isolation measure and were placed in isolation from the rest of the country. teleworkThe Ministry of Health, in order to stop the spread of the pandemic, and two months later resolved to establish the health regulations of social responsibility in the face of the pandemic. This means that currently in Venezuela each individual is responsible for complying with the biosecurity protocols dictated by the Ministry of People's Power for Health, to report cases of symptomatology in personal, family or any other social environment.

The occupational safety law for the management of occupational diseases has a protocol and list of occupational diseases. and in this sense, in order to determine the disease and its occurrence, the employer is allowed to perform a pre-occupational examination, which constitutes a crucial information base for the management of these cases; therefore, the COVID-19 could be managed in the same way, in order to avoid the spread of the disease and to avoid liability for employers and consequences for society, which is why it is under study. 

The implementation of this type of measures could eventually cause disagreements as measures that violate the right to privacy of individualsAs mentioned above, the use of the certificate implies the disclosure of the current health status of citizens with respect to COVID-19, and the requirement of this certificate by airlines, restaurants and commercial establishments may be considered invalid. 

In view of these conflicting positions, Alan Aldana & Abogados understands that, even though the right to privacy and the right to health are rights protected by the Constitutions and international instruments on Human Rights, however, in the present case it is considered that in the weighing of both rights and taking into consideration the current situation, public health prevails, since, as it has been seen, COVID-19 is a virus that has managed to advance very rapidly in all continents, thus causing a large number of infected people and deaths, for which the States have the duty to implement measures in order to preserve the health and life of individuals.

Prepared by:

  • Milangela Tachón
  • Tania Quintero

Sources consulted: