The Commissioner for Information of Public Importance and Personal Data Protection initiated on 5 October 2017 the oversight procedure over the implementation of the Law on Personal Data Protection in the Ministry of Labour, Employment, Veteran and Social Affairs and the Ministry of Health, regarding the news published on the website of the Ministry of Labour, Employment, Veteran and Social Affairs, shared by many media which, among other things, states: “Government ministers agreed with the Ambassador of China to Serbia and the Director of Zelezara Smederevo a sick leave control mechanism ... as well as how it will be implemented ... this will be a kind of pilot project, which, if it yields good results, will be generally applied ...”
Bearing in mind that any mechanism of sick leave control involve the processing of personal data, and the data that are particularly sensitive by the law, the Commissioner asked both ministries to state within three days what the mentioned “pilot project” and “agreed mechanism of sick leave control” involve, what is the legal basis for the said personal data processing, as well as a number of other relevant issues.
The Ministry of Labour, Employment of Veteran and Social Affairs, although the creator of this news, did not make any statement within the set period.
The Ministry of Health made a statement within the set period. In its statement, the Ministry said that it was not behind the news of the emergency control of sick leave, and that neither the Minister of Health nor the Ministry made any statements in this regard nor did they provide the media with a statement on the matter.
In the statement, the Ministry also stated that, as the Commissioner pointed out in initiating the oversight procedure, the existing sick leave control mechanism is provided for in Article 164 of the Health Insurance Law, and that, in keeping with the content of this legal provision, the health inspectorate of the Ministry does not conduct oversight over the exercise of sick leave.
Regardless of how much news about the “pilot project” and the “agreed” sick leave control mechanism has a real basis, the Commissioner will send appropriate warnings to the Ministry of Labour, Employment, Veteran and Social Affairs, and to the Government of Serbia as well (since the President of the Government made statements announcing “emergency control of sick leave” after the oversight procedure was initiated).
The Commissioner once again draws attention to the fact that health data fall into the category of particularly sensitive data, the protection of which, apart from the Law on Personal Data Protection, is additionally guaranteed by the Law on Patients' Rights. The public authorities are obliged to refrain from any activities that involve the processing of these data in a manner beyond the one explicitly stipulated and governed by applicable law. Regarding the control of sick leave, in case of suspected abuse of the right to sick leave, employers have the right to use the mechanisms established by the Labour Law and the Health Insurance Law.
However, these mechanisms do not foresee any powers and activities of the Government or ministries. The idea that these activities could be based on some “pilot projects” and “sick leave control mechanisms” agreed with anyone, would be a manifestation of the wrong dilettante interpretation of the law or something worse, but in any case, engaging in such activities would lead to violations of several laws, a massive violation of citizens’ rights and the very execution of a large number of punishable offenses, even criminal offenses.
