Business Pally decry Pre Employment screening Ins and Outs

Pre Employment

The issuing of the employment contract depends on how the recruitment examination turns out.

Otherwise, the division manager would have sent you to the HR manager first to clarify the contractual formalities.

In fact, quite a few companies are pushing for such recruitment tests. And many applicants do not dare to ask why. Because they fear that they won’t get a job otherwise, chatty said.

What at first glance looks like employer arbitrariness makes sense to a certain extent, especially from the point of view of occupational safety and health prevention.

In addition to occupational health and safety, data protection also plays a decisive role in the admissibility and scope of recruitment examinations.

Occupational safety: A question of health suitability

According to business ally magazine, Every professional activity places certain demands on the performance of an employee:

Some need to be able to stand for a long time, others lift heavy loads, and still, others sit behind the wheel of a vehicle for many hours.

In certain cases, therefore, a pre-employment examination is not only a special wish of the future employer but an obligation.

This is generally the case when carrying out an activity that is related to the safety and health of other people. So if health problems that arise during the activity could endanger other people.

This applies, for example, to passenger transport, such as bus drivers, train drivers, or pilots.

Examination offered, but not required

Anyone who has a VDU workstation in a normal office will generally not endanger other people. 

However, the workplace could strain your eyes. Therefore, the employer must offer an eye examination.

However, participation in the study is voluntary for the employees concerned.

Relevance to the activity

Whether a pre-employment examination makes sense and is permissible is determined by whether the health suitability is relevant for the position in question.

A high load-bearing capacity of the legs will not play a major role in a predominantly sedentary activity.

 A corresponding pre-employment screening test is therefore neither useful nor permissible without the consent of the person concerned.

Prospective employees and applicants may decline health inquiries and health screenings not related to the job, healthfully advised. 

Research into the health situation in the applicant’s family is also not permitted.

In practice, many will still agree to the pre-recruitment test and the interview.

Obligation to provide information

Health-related questions that have to do with the job and the employee themselves must usually be answered truthfully to a certain extent. This includes questions

Health suitability for the desired position (e.g. is there an illness that permanently or repeatedly restricts the exercise?).

To endanger other employees or customers (such as contagious diseases) or Health factors that could result in disability within the next six months (such as a difficult operation; but no questions about pregnancy).

What does data protection say?

Pre-employment screening is an important part of workplace health care. However, they must not exceed the legal framework, according to business pally.

Occupational health and safety officers, employee representatives, and data protection officers should work together to achieve the positive goals of these investigations without putting employees at a disadvantage.

Medical confidentiality

On the one hand, the concrete examination results are subject to medical confidentiality.

The company doctor may only pass on the suitability itself, not the exact diagnosis, to the future employer.

Data processing in the employment context

Article 88 GDPR (data processing in the context of employment) contains an opening clause.

Thereafter, Member States can provide more specific rules in the employment context. This is especially true for recruitment purposes.

These rules must include appropriate and specific measures to:

to preserve human dignity

the legitimate interests and

The fundamental rights of the data subject, in particular with regard to transparency of processing, the transfer of personal data within a group of companies or a group of companies engaged in joint economic activity, and surveillance systems in the workplace.

The US legislator has implemented this more specific regulation with § 26 BDSG-new (data processing for employment purposes).

Recruitment examination required?

Section 26 of the new Federal Data Protection Act states that those responsible may process employees’ personal data for the purposes of the employment relationship if this is necessary for the decision to establish an employment relationship.

As in occupational health and safety, it is, therefore, necessary to check whether a pre-employment examination is necessary.

Is consent an option?

The processing of the personal data of employees can also take place on the basis of consent.

The assessment of the voluntary nature must be taken into account.

The dependency of the employed person who is in the employment relationship, as well as

the circumstances under which the applicant/prospective employee gave consent.

Voluntariness can exist, for example, if there is a legal or economic advantage for the employed person or Employer and the employee pursues the same interests.

In an application process, however, consent is unlikely to be given voluntarily. This variant is therefore more likely to fail on a legal basis, Techpally stated.

Special Categories of Data

Health data belongs to the special categories of personal data. The processing of such data for employment purposes is permitted if they exercise rights or are required to fulfill legal obligations under labor law, social security, and social protection law and there is no reason to assume that the legitimate interest of the data subject in the exclusion of processing prevails.

The employer may process genetic data and biometric data, for example, to clearly identify a person (Article 9 GDPR).

Data protection, therefore, does not stand in the way of recruitment examinations if they are necessary, for example, to fulfill occupational safety and health obligations.

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