How to document special leave in accordance with the GDPR?
As a rule, the work regulations in force at a given employer should regulate the acquisition of the right to special leave by employees. On the other hand, in companies where employers have not introduced work regulations, the issues of special leave are regulated by the Regulation of the Minister of Labor and Social Policy of May 15, 1996 on the method of justifying absenteeism and granting employees leaves from work, hereinafter referred to as the justification regulation. How to document special leave in accordance with the GDPR?
Rules for granting special leave
Pursuant to § 15 points 1-2 of the Regulation on justification, the employer is obliged to release the employee from work for the period of:
- 2 days - in the event of the employee's wedding or birth of his child, or death and funeral of the employee's spouse or his child, father, mother, stepfather or stepmother;
- 1 day - in the event of the employee's child getting married or the death and funeral of his sister, brother, mother-in-law, father-in-law, grandmother, grandfather, as well as another person dependent on the employee or under his direct care.
Most often, the employee obtains a leave from work in order to participate in his / her own wedding or a child's wedding, funeral or in connection with the birth of a child on the basis of a written application submitted to the employer. For this purpose, employers have appropriate forms prepared, on which the employee should enter such information as: name and surname of the employee, position held, date of application, date of the special leave, reason for taking this leave and the employee's signature. The leave period indicated in the application should be used for preparation or participation in a specific family event. It is worth adding that the two-day special leave may be used in parts.
Mr. Tomasz applied to the HR department of the company where he worked for a special leave due to the organization of his own wedding. The employee has submitted an appropriate statement to the employer that on May 1, 2021 he is getting married and therefore would like to take the 1st day of leave, i.e. on Friday, April 30, 2021. The employee would like to use the second part of the leave on May 4, 2021. The employer should consent to the use of special leave granted in such a way that it will be divided into two parts, but all the time in connection with the employee's wedding. The employer may expect the employee to present a marriage certificate, but only for inspection.
In accordance with the GDPR, can the employer request documents confirming the special leave?
The provisions of the ordinance on the method of justifying absenteeism and granting dismissals from work lack detailed regulations on how to document a special leave in accordance with the GDPR, in the event of the death of family members or the birth of an employee's child. Therefore, employers who grant occasional leaves to their subordinates should be guided by the general principles set out in the Regulation on the GDPR or in the Act on the Protection of Personal Data. The employer should not require the employee to submit to the personal file documents containing the detailed personal data of his relatives, which are not necessary in the event of the need to take a special leave. Personal data obtained in this way are not adequate for the purpose of their storage. Therefore, it is unacceptable to keep in the employee's personal files a copy of the death certificate of a family member or the birth certificate of a child in connection with the fact that he or she has taken a special leave.
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It should be noted that in § 3 of the justification ordinance, various evidence was provided to justify the employee's absence from work, but no information was provided on the submission of evidence regarding the use of special leave or examples of justifying this absence. It is worth recalling that the evidence justifying the absence from work are:
- medical certificate;
- a decision of the competent state sanitary inspector issued in accordance with the provisions on combating infectious diseases in the event of the isolation of an employee for reasons provided for in these provisions;
- employee's statement in the event of circumstances justifying the need for the employee to provide personal care for a healthy child under 8 due to unforeseen closure of a nursery, children's club, kindergarten or school which the child attends;
- employee's statement about the illness of the nanny or day caregiver and a copy of the medical certificate;
- personal summons of the employee to appear in person, issued by the authority competent for the general duty of defense, the government administration or local government authority, the court, the prosecutor's office, the police or the authority conducting proceedings in cases of misdemeanors as a party or a witness in proceedings before these authorities, containing a note confirming the employee's appearance at the summons;
- employee's statement confirming the completion of a business trip during the night, completed in such a time that 8 hours have not elapsed until the commencement of work, in conditions preventing night rest (§ 3 of the justification regulation).
In accordance with the GDPR, the employer may not request the submission of documents to the personal file justifying the occurrence of special circumstances of dismissal (i.e. death certificate, birth certificate, marriage certificate), which contain detailed personal data of his relatives.
Special leave in accordance with GDPR - data minimization and photocopying of marital status documents
Pursuant to Art. 5 lit. c of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / EC "personal data must be adequate , relevant and limited to what is necessary in relation to the purposes for which they are processed ("data minimization") ". Employers should limit the storage and processing of documents containing personal data of employees to a minimum. The processing of personal data of third parties, due to the fact that the employee would like to take a special leave, in this case is an activity that goes beyond the adequacy principle.
Therefore, in order to document a special leave in accordance with the GDPR, employers should follow the principle of data minimization. Therefore, the death certificate or the child's birth certificate may be presented to the employer only for inspection. The photocopying of the above documents for the purpose of collecting and storing in the employee's personal documentation violates the principles of personal data processing resulting from the provisions of the GDPR.
Mr. Jerzy needed to take a one-day special leave because he wanted to attend his brother's funeral. For this purpose, he sent an application to the employer for a special leave. The employer, however, made it a condition that he would be granted leave after presenting a copy of the death certificate, to be attached to the leave application and personal files. In view of the above, it should be stated that Mr. Jerzy should not agree to the transfer of a copy of his brother's death certificate, as it is enough for him to submit a relevant declaration to the employer. The employer's action in this case is unacceptable and violates the principles of the GDPR. The request for a copy of the death certificate goes too far, as there is no need to process third party data.
Therefore, in order to comply with the provisions of the GDPR, the solution for employers may be to prepare new forms for subordinates containing an application for special leave. Such a form should contain: the name and surname of the employee, position held, date of application, date of special leave, declaration of marriage, birth of a child, participation in a funeral and the employee's signature.
In the company, it is worth introducing a model declaration for employees, in which they can include information on the reasons and circumstances of taking a special leave.
In conclusion, the regulations do not specify the obligation for the employee to submit copies of the birth, death or marriage certificate to the personal files in order to justify the special leave.How to document special leave in accordance with GDPR? The employer may expect the employee to submit a statement on granting special leave together with the presentation of documents justifying the granting of special leave for inspection. Under no circumstances should employers keep the above documents in the employee's personal file. Employers may not require employees to provide documents from marital status files on the condition that they are granted a special leave.