Mandatory Covid testing is not something we’ve yet seen in the UK but if it does happen, and perhaps we will see it in the health care sector, we know that data protection obligations will need to be strictly observed - after all this is sensitive personal data. Mandatory testing is, however, now in force in the UAE for a number of business sectors – so what about the data obligations for employers in that region? It is an important question because unlike many countries, the UAE has no ‘on-point’ legislation that regulates the protection of personal data – there is no federally applicable data protection law in the UAE. So, is it safe for employers to simply ignore the issue, and any objections employees might raise, and press on with their testing programme? The answer to that question is a definite ‘no’. That’s because the UAE addresses data protection indirectly through a number of strict and far-reaching privacy laws which mean employees will have an expectation that their data will be protected.
It’s a point that has been flagged by one of our lawyers in the region in her recent article ‘Mandatory Covid testing in force in some UAE business sectors’. Ruth Stephen says it means employers need to put in place clear staff policies around recording the results of the PCR tests and the vaccination status of individual employees. Let’s hear more about that. Ruth joined me by video-link from Dubai to explain the point:
Ruth Stephen: “So, currently the onshore UAE doesn't have a free-standing data privacy law. However, there is a draft law in circulation therefore we do foresee that a privacy law will apply to employees when employers are processing and storing employee personal data, and definitely medical records or vaccination records or results from PCR tests would comprise sensitive personal data that would be subject to this law. However, currently, and as you've said, there's a whole raft of legislation that protects an individual's right to privacy therefore before you are storing or collecting these results it is definitely recommended that you get the employee's written consent before you do that. The benefits of having a policy are that generally they should be non-contractual and having this flexibility means that as we move with the times, as the laws are changing, you can update this policy to reflect the obligation of the employer, but also the legal position. Generally, what we're seeing is that if there is a clear and transparent staff policy in place surrounding vaccinations, setting out the rationale that the employers may be having to encourage different groups or classes of employees to be vaccinated, this definitely helps employees to see the bigger picture and to cooperate generally overall. Additional considerations in that policy are data privacy and how long these records will be stored, for example, but also things around cost, so who will pay for the vaccine. This is not dealt with in the ministry circulars, albeit, it is expected that the cost would fall on the employer. Definitely, if there was an employee in one of these sectors who isn't vaccinated and has to have a PCR test every 14 days, if there was an inspection and there was found to be a breach, it is expected that a fine would fall on the employer and not the individual employee.”
Earlier this week Ruth talked to this programme about the mandatory Covid testing which has been in force in some UAE business sectors since the end of March’. That programme is called: ‘UAE’s mandatory Covid testing expanding’ and is available now for viewing on the Outlaw website.
- Link to article ‘Mandatory Covid testing in force in some UAE business sectors’