medical certificate

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

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

In order to function, they have implemented the necessary hygiene and safety regulations and, in addition, they have proposed a controversial new resource, still under discussion: the medical certificate of having passed COVID-19 or immunity passport; that is, the guarantee endorsed by a health specialist that assures that the person had the virus and therefore has antibodies against it. 

According to the General Data Protection Regulation of the European Union, it is forbidden to disclose information related to a person’s health, except if such information is of 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 must analyze the situation in depth and ensure that the greatest possible number of guarantees 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 confinement measures were gradually relaxed, but at the same time strict controls were established for entry into their territory. Such is the case of Puerto Rico, which requests 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 ask for a negative test or, failing that, will quarantine visitors for 14 days, while entry to Bermuda requires the delivery of the test 72 hours before arrival and at the time of arrival. Similarly, entry to China will require testing five days prior to boarding the plane to that destination.

When it comes to company personnel, the legality of asking for a medical certificate for COVID-19 or a confirmation test of contagion is once again in unstable terrain.

On the one hand, the test is essential to avoid putting more people and even those who are ill at risk, but on the other hand it can end up infringing on 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 study in the workplace is voluntary for employees, unless it is extremely necessary to check whether a worker’s state of health may represent a danger to him or her and his or her 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 a business responsibility for its employees. If the company does not guarantee to the collective that the environment is safe and there is massive pollution, the responsibility lies with the company. Therefore, the safe environment of COVID-19 within the current content, could justify the action as an extraordinary measure and by the emergency that this has generated, to ensure the working environment.  

Medical certificate, Case Venezuela

In Venezuela, according to the Official Gazette of June 1 this year, which summarizes the situation in the national territory since last March 13 when the virus was detected as the protagonist of the global pandemic, in the country, and following the timeline citizens went through a measure of mandatory isolation and remote working, to stop the spread and that after two months since then resolved to establish health regulations of social responsibility to the pandemic. This means that currently in Venezuela everyone is responsible for complying with the biosecurity protocols dictated by the Ministry of Popular Power for Health, reporting cases of symptoms in personal, family or any other social environment.

The labor security law for the management of occupational diseases has a protocol and list of such diseases and in this sense to determine the disease and its occurrence the employer is allowed to perform a pre-occupational examination that constitutes a crucial information base for the management of these cases; then it could well be the same way the COVID-19 could be managed, to avoid the propagation and bring responsibility to the employers and consequences to the society, for this reason it is under study. 

The implementation of these types of measures could eventually cause disagreement because they are considered to be measures that violate the right to privacy of individuals. As mentioned above, the use of the certificate implies the disclosure of the current state of health of citizens with respect to COVID-19, and the requirement of this certificate by airlines, restaurants and commercial establishments could be considered invalid. 

In view of these opposing 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 weighting of both rights and taking into consideration the current situation, public health prevails, since, as we have seen with COVID-19, it is a virus that has managed to advance very rapidly in all continents, thus bringing about a large number of infections and deaths, for which States have the duty to implement measures in order to preserve the health and life of individuals.

Written by:

  • Atty. Milangela Tachón
  • Atty. Tania Quintero

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