Despite numerous changes in the social security legislation in recent months, Bulgarian law remains “silent” when it comes to employers' specific rights and obligations in relation to the coronavirus pandemic. A number of orders of the Minister of Health were aimed at specifying the responsibility of employers in relation to the prevention of the spread of coronavirus. However, there is still no explicit requirement for employers to test their employees, e.g. PCR testing, nor to instruct employees to test themselves.
One of the major practical problems in this context is the balance between the obligation to ensure healthy and safe working conditions and the obligation of the employer in his capacity as personal data controller. Undoubtedly, information on the health status of individuals falls into the category of "sensitive" data within the meaning of the General Data Protection Regulation (GDPR) and the Personal Data Protection Act (PDPA). The processing of sensitive personal data in the context of the the rights and obligations of the employer - data controller, is permissible in principle. However, it must be performed with the awareness of the potential damage that data subjects may suffer from the unauthorised disclosure of their sensitive data. Respectively, adequate technical and organisational measures must be taken to ensure the security of this data.
The General Data Protection Regulation entered into force on 25 May 2018 and it introduced unprecedented penalties for established violations of the rules on personal data processing. Therefore, as expected, many employers reached out to the Commission for Personal Data Protection (CPDP) with inquiries about the various aspects of the processing of information regarding the health status of employees.
The CPDP issued opinions on the aspects of COVID-19 group testing of employees (Opinion Reg. № НПМД -17-151 / 2020), as well as on the processing of personal data regarding the health and level of information of employees in case of presence of an employee infected with coronavirus (Opinion Reg. № НПМД -17-114 / 2020). The opinions can be found on the Commission's website.
The Commission generally concludes that Bulgarian legislation does not oblige employers to test their employees for coronavirus. Employers only have the legal opportunity to organise testing, but not to carry it out themselves. However, before taking any such action, employers should perform a preliminary analysis (the so-called balancing test). The analysis establishes whether the legitimate interests of the employer (protection of the health and fitness for work of all staff and continued operation of the activity) have an advantage over the rights and freedoms of data subjects (the idea of limiting interference with the privacy rights of the employee). If this is the case, the employer may issue an order for mandatory group testing to identify coronavirus-infected individuals among its employees. The processing of personal data concerning health, as well as data derived from genetic data samples, containing genetic material may be performed only by the competent health authorities, which are bound by the obligation of professional secrecy and subject to the applicable legislation.
The Commission has not ruled in terms of who should assume the expenses in relation to coronavirus testing. But it can be assumed that if the employer requires and organises the testing, it should be the employer who also pays for them.
An opinion of the CPDP (Reg. № НПМД-17-114/2020) gave an explicit answer regarding the level of information of other employees in case of a coronavirus infection in the workplace: "The employer may provide information to the staff about the presence of an infected employee without providing data on their identification, and only when an infected employee is confirmed in an indisputable manner on the basis of Article 4, para 1 of the Health and Safety at Work Act (HSWA). The health authorities should take actions to identify the contact persons and examine them accordingly”. Obviously, the aim is to enable other employees, if they see fit, to independently undergo a coronavirus test.
In the Bulgarian legislation, the terms "quarantine" and "quarantining" (or placing someone in quarantine) have an established legal meaning and consequences in the field of labour and social security law.
An employee is entitled to take a leave in various cases, when he/her himself/herself is not unfit to work, but due to health reasons cannot carry out work activity. These cases are called "equated to a common illness" because they have similar legal consequences. Some examples are the situation of quarantine or dismissal upon the prescription of health authorities, as well as the cases of caring for a sick or quarantined family member or caring for a healthy child due to quarantine in a child care facility where.
A quarantine is a measure to prevent the spread of infectious diseases and it is expressed in isolating the respective person and limiting their movement during the time they are in quarantine, which results in an inability to work. Suspension from work upon prescription of the health authorities is a similar measure, by which a person is prohibited from carrying out their work duties because they have suffered from a contagious disease, has been found to be a virus carrier or has been in contact with a contagious patient. Such suspension from work is enforced if the insured person cannot be employed in another suitable position during the respective time.
These kind of leaves are granted by the health authorities. According to Article 6, para 2 of the Medical Expertise Ordinance, the leave due to temporary unfitness for work (including in the equated cases) is formalised with a document for sick leave. The insured person is obliged to present it or to notify the employer / insurer within two working days from its issuance.
According to Article 43 and Article 45 of the Social Insurance Code (SIC), monetary compensation for temporary unfitness for work due to quarantine or suspension from work prescribed by the health authorities, must be paid respectively for the time for which the insured person is in quarantine or for the time of suspension, if the insured person cannot be employed in another suitable position during the respective time, but for not more than 90 calendar days in a calendar year. Monetary compensation under the conditions and in the amount of the monetary compensation for temporary unfitness for work due to general illness is also paid in other "equated cases".
The daily monetary compensation for temporary unfitness for work due to common illness and due to the cases equated to a common illness is calculated in the amount of 80 per cent of the average daily gross remuneration on which social security contributions have been paid or are due. The daily monetary compensation for temporary unfitness for work due to common illness may not exceed the average daily net remuneration for the period, from which the compensation has been calculated.
Based on the above, it can be concluded that the legal significance of "voluntary" quarantine or self-quarantine does not equal the legal significance of quarantine enforced by medical authorities. In the absence of a medical document certifying the objective need for absence from work, the employee may, on general grounds, even be subject to a disciplinary penalty.
Of course, there is no obstacle to a conflict-free solution to such situations. It is advisable for the employer to seek such a solution by offering the employee to use, for example, paid or unpaid leave. Furthermore, similar advice is given by the experts with the Ministry of Labour and Social Policy on the website of the ministry. In a recent awareness campaign on the topic "If you are a parent of a child in quarantine", employees were advised to use paid or unpaid leave. They were presented with the procedure for receiving benefits from the Agency for Social Assistance (ASA) if unpaid leave is used and the respective persons are deprived of income, as well as with the procedure for issuing a document for sick leave and receiving compensation from the Public Social Insurance (PSI).