Covid certificate: Employment Guide

1. Request of Covid certificate to employees

Can the Company ask employees to show the Covid certificate as a condition to entering the premises?
  • On a general basis, companies are not entitled to ask the Covid certificate to its employees.
  • Only on an exceptional basis, when justified by particular circumstances (e.g. specific event with high attendance), it may be possible for the employer to request the Covid certificate to employees. This requirement may only apply in very exceptional cases where special services are provided, or specific circumstances exist, that could justify the Covid certificate request.
  • In addition, such measure should always be assessed by local health & safety prevention services. A specific case-by-case assessment by the local health & safety prevention services is strongly advised to determine whether such measure is necessary and assess if no other measures less intrusive exist to avoid contagion (e.g. social distancing, mask wearing, ventilation, etc.). Possible exceptions or alternatives (e.g. for individuals suffering from illnesses) should be analysed to ensure proportionality.
  • Under this scenario, employees can accept to submit their Covid certificate, but they would always be entitled to refuse to answer, and they should not bear negative consequences due to their refusal.
  • In the exceptional circumstances where the Covid certificate may be requested to employees, it may be requested by the Company's staff, which shall comply with Data Protection regulations regarding "special category" data.

2. Sanctions for non-compliance

What are the sanctions for non-compliance? Who is subject to such sanction?
  • Given that Covid certificate is not mandatory for employees to access company premises, no sanctions can be imposed to employees in case of lack of Covid certificate or refusal to submit it.
  • On the contrary, asking for the Covid certificate without exceptional circumstances that justify it, may be considered a very serious infringement of employment and Data Protection regulations.
  • Under employment law, very serious infringements against the employee's right to privacy and dignity can be subject to fines from EUR 7,501 to 225,018 and prohibition to participate in public tenders (generally, except for recurring cases, widespread practice, or very serious situations, sanctions should be on the lower range here, if any).
  • Additionally, any negative consequence suffered by the employee's lack of Covid certificate or refusal to show it would be considered discriminatory and could lead to a claim for compensation of any damages suffered.

3. Request of Covid certificate to consumers

Can the Company ask consumers to show the Covid certificate as a condition to entering the premises?
  • Yes, in general, Spanish Courts have admitted that requesting the Covid certificate for certain activities and public spaces is legal, as long as the measure is suitable, necessary and proportional to achieve the intended purpose. It should be considered only on a temporary basis and under exceptional circumstances (e.g. specific territories with high Covid incidence), and limiting the measure as much as possible.
  • At the moment, most of the Autonomous Communities are currently requiring the Covid passport for certain premises, however, in view of the fact that the contagion situation is reversing, some of them are opting to omit the measure.

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