Health data at work: What is allowed - and what is not allowed at all

Can the employer know what illness I have? Or whether I am chronically ill? And what about questions in the job interview about severe disabilities or previous diagnoses? Questions like these crop up time and again in everyday working life - and put many employees in an awkward position. The answer is often clearer than many people think: in most cases, it's simply none of the boss's business.

Illness in a job interview? A clear no.

In Baden-Württemberg, just such a case landed on the desk of the data protection authority: An applicant had complained because he was presented with a questionnaire containing blanket questions about illnesses, the consequences of illnesses and a possible severe disability. The supervisory authority deemed this procedure to be inadmissible.

Applicants may only be asked questions that are relevant to the requirements. Asking about a severe disability is taboo. This is because a rejection for this reason would be discrimination under the General Equal Treatment Act (AGG).

Posting of sick days? Also inadmissible.

One particularly blatant case took place in Brandenburg: A company there had sickness-related absences documented by the letter "K" in the shift schedule - visible to all colleagues. And although the employees had given their consent as part of a "Welcome Day", this was not legal either.

Why? Because consent can hardly ever be assumed to be genuinely voluntary in an employment relationship. People who have just started a new job rarely feel free to say "no". Data protection authorities see this as a pressure situation - and therefore as unlawful data processing.

What the employer is allowed to know - and what not

Of course, the processing of health data is not completely excluded. If employees are on sick leave, for example, the employer may know that someone is absent - but not why. The decisive factor is always: is the information really necessary?

For example: In the case of continued illness where there are doubts about the continued payment of wages, it may be checked whether it is actually the same illness. But even then, milder means must be used - such as a query to the health insurance fund or an assessment by the company doctor, without medical details ending up with the employer.

A suspicion alone is not enough. And under no circumstances should the boss start collecting diagnoses or speculating about "conspicuous" patterns of illness.

When employers start asking for diagnoses or making sick days publicly visible, this is not an interest in health - but a control reflex that no longer has anything to do with data protection. Anyone who is ill needs medical help - not a nosy boss.