An employer may not ask the person applying for employment for any data with regard to which the employer does not have any legitimate interest (§ 11 of the Employment Contracts Act). Legitimate interest means that you may only take an interest in matters directly related to the ability to perform work.
As data on health and disability are sensitive personal data (clause 4 (2) 3) of the Personal Data Protection Act), the employer must assess their legitimate interest even more strictly. Even if the employer has a legitimate interest, the protection of the private life of the person applying for work must be ensured, as provided for in § 26 of the Constitution.
The employer needs to ascertain whether the applicant is suitable for the job. Therefore, an applicant may be asked if they have or may have difficulties in performing any of the tasks. However, as a rule, applicants should not be asked about their health and disability, as there is usually no legitimate interest for this. The job advertisement should give jobseekers enough information about the nature of the job to enable them to assess their actual capabilities in advance.
The Equal Treatment Act protects people from discrimination due to their disability in employment relationships (clauses 2 (2) 1) and 2) of the Equal Treatment Act).
This means that no one who could cope with the performance of job duties may be treated less favourably because of their disability when an employee is chosen from a pool of applicants. The same applies to the state of health of a person, as this, especially in the case of chronic diseases or anatomical abnormalities, is linked to the concept of disability. In the Equal Treatment Act, disability is defined first and foremost as an impediment that restricts a person’s participation in social and working life, including their chronic illnesses (§ 5).
Whether or not the disability has been diagnosed by a doctor is not of decisive importance. Thus, the meaning of disability must be understood in a broader sense than that set out in the Social Benefits for Disabled Persons Act.
An employer may only ask an applicant about his or her health if a law requires it or if certain health requirements may have to be met in connection with the job.
For example, a person applying for a job in the police service must undergo the medical examination prescribed for police officers, and a person whose state of health does not meet the established requirements will not be admitted to the police service (clause 40 8), § 41 of the Police and Border Guard Act).
Subsection 13 (1) of the Communicable Diseases Prevention and Control Act requires employers to demand a written health certificate concerning infectious diseases from a person to be hired before the commencement of work. This applies to employees who handle food and drinking water, teachers, health care professionals and other employees listed in this provision.
This explanation does not constitute legal aid in a specific case. Therefore, if you feel that you have been treated unequally, but you did not find a solution to your problem in this article, or if you have a question, please contact the Equality Commissioner by e-mail at avaldus@volinik.ee or telephone +372 626 9059. The anonymity of the person is guaranteed when contacting the Commissioner.
