Medical confidentiality

Notion

Every employee is entitled to medical confidentiality in the context of the employment relationship. The employer cannot, in principle, ask questions about the employee's state of health or try to find out what illness the employee has. In practice, there are situations where the employer's interest in knowing the employee's state of health and the employee's interest in protecting his or her right to medical confidentiality are contradictory.

Job interview

Before hiring a new employee, the employer sometimes wants to make sure that the employee is in good health or, in the case of a female employee, that she is not pregnant. This information is covered by doctor-patient confidentiality.

The candidate may lie to such questions, unless his or her state of health is directly related to the position being considered. If such questions are legitimate, the employer may sanction an employee who hides a significant health problem during the job interview.

Medical consultant

An employee with a flu who is caught at a nightclub... An employee with a hernia who plays tennis... An employee who is unable to work immediately after being dismissed or who submits a retroactive medical certificate... There are many different situations in which the employer may doubt the accuracy of the employee's medical certificate.

In such cases, the employer may order the employee to visit a medical consultant who will confirm or deny the reality of the employee's inability to work. The employer may ask the consultant to provide only certain specific information. The rest is subject to medical confidentiality.

Furthermore, the employer is prohibited from contacting the employee's consulting physician directly to obtain further information.

Alcohol and drugs in the workplace

The use of alcohol or drugs in the workplace may endanger the employee's colleagues or third parties and may damage the company's image. Employers are tempted to test employees for alcohol or drugs when they have a concrete suspicion or as a preventive measure. However, there is a risk that the employer may learn information that is subject to medical secrecy through these tests. To avoid abuse, screening tests are subject to conditions of validity and a strict procedure.

COVID19

Under the COVID19 crisis, an employer may, to protect the health of other employees, require an employee to take a test in certain situations. 

The results of the test are subject to medical confidentiality. Can the employee refuse to provide the test result to the employer?

The question of whether or not an employee is vaccinated is protected by medical confidentiality. Can the employer ask his employees if they are vaccinated, if they wish to be vaccinated or the reasons for refusing to be vaccinated? Does the same apply when the employer organizes a vaccination session in the company and needs the names of the interested employees for organizational reasons?