Donation of leave: Opinion of the APDP on the draft Sovereign Order implementing Law no. 1.547 of 22 June 2023 (Deliberation no. 2025-007 of 9 April 2025)

The Minister of State referred the matter to the Personal Data Protection Authority (APDP) on 11 March 2025 concerning the draft Sovereign Order implementing Law no. 1.547 of 22 June 2023 on the donation of leave, in accordance with Article 38 of Law no. 1.565 of 3 December 2024 on the protection of personal data, which provides for the APDP to be consulted "when drafting regulatory measures concerning the protection of personal data or the processing of such data".

Law no. 1.547 of 22 June 2023 harmonised the pre-existing system of donation of leave applicable to State and Commune employees with the new system it introduced for private sector employees.

APDP Deliberation no. 2025-007 of 9 April 2025 focuses on respect for privacy and the preservation of medical secrecy.

In this context, the APDP, on the one hand, issues an opinion on the draft Sovereign Order concerning private sector employees and, on the other hand, reiterates its request to amend the implementing texts concerning civil servants (brought to the Government's attention on 10 February 2025) so that the implementing provisions (like the legislative provisions) are harmonised.

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Opinion of the APDP

Private sector

The APDP considers the solution proposed for employees in the private sector to be "protective and satisfactory in terms of respect for privacy and the preservation of medical confidentiality".

It is in fact stipulated that the employee benefiting from the gift of leave must prove that the legal and regulatory conditions have been met by producing a medical certificate submitted to the employer "without, however, any medical data being communicated".

Public sector

With regard to the public sector, the APDP recommends corrective measures to guarantee the confidentiality of data relating to health, and the amendment of the regulatory texts applicable to civil servants so that they are as protective as the draft Sovereign Order applicable to the private sector.

The APDP draws the Government's attention to the provisions relating to donation of leave (Article 23-4)
and family support leave (Article 33-6) of Sovereign Order no. 6.365 of 17 August 1978 setting the conditions for application of Law no. 975 of 12 July 1975 on the status of State civil servants, which were introduced by Sovereign Order no. 11.002 of 19 December 2024.

These provisions stipulate that a detailed medical certificate must be sent through the hierarchical channel at the same time as the application, and must explicitly include information relating to the pathology, the seriousness, the possible prognosis and the repercussions, which must be "submitted in a confidential envelope"(no mention of "medical confidentiality") for transmission to the medical officer ("médecin conseil") of the State Medical Benefits Department ("Service des Prestations Médicales de l'Etat") for opinion.

The APDP points out the potential risk that this envelope could be "opened by non-medical staff who are not legally authorised to have access to health data relating to the entourage of the staff of the Administration who submit these applications", which would "also lead to this data being recorded in the mail databases of the Service in which the applicants are based, as well as their supervisory Directorate and Department, and those in which the applications are examined".

In addition to amending the regulations, the APDP recommends "raising awareness among all human resources departments, which should implement procedures to ensure the confidentiality of the information collected from the person wishing to benefit from donated leave (medical certificate, death certificate) as well as that relating to the donor(s)".

Lastly, the APDP points out that the medical certificate "in itself constitutes data relating to health, in accordance with article 2 figure 6 of Law no. 1.565 on the protection of personal data".

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