On January 4th, 2022, the Law n. 14,289 was enacted, providing for the obligation to preserve confidentiality of the condition of individuals who are positive for human immunodeficiency virus (HIV), chronic hepatitis (HBV and HCV), leprosy and tuberculosis.
The new legislation innovates by imposing the obligation of private agents to preserve the confidentiality of the conditions indicated above, under penalty of administrative liability and indemnity for moral and material damages. The new rule must be observed both by public and private agents, in the scope of health services, educational establishments, workplaces, administration and public safety, legal proceedings and written and audiovisual media.
According to the new legislation, the professional secrecy (privilege) can only be broken in cases determined by law, for just cause or by express authorization of the individual. The law does not contain elements that characterize the aforementioned just cause.
With regard to inquiries and legal proceedings involving individuals under the conditions described in the Law, the necessary means must be provided to guarantee the confidentiality of information on the health condition. Likewise, in trials in which it is not possible to maintain the confidentiality of the condition, access to the sessions/hearings will only be allowed to the parties and their respective lawyers, as occurs in cases that are processed under seal.
There is an express provision that failure to comply with the new legislation may result in the sanctions provided for in the General Data Protection Law, as well as other applicable administrative sanctions and compensation for material and moral damages. In the event of disclosure of information about health conditions by agents who, by virtue of their profession or position, are obliged to preserve confidentiality, the penalties will be applied in double, as they are considered intentional and with the intention to harm or offend the individual.
Considering that the aforementioned legislation can directly affect ongoing actions dealing with the subject, as well as the work environment and dynamics of companies that have employee information under the conditions established above, our labor team is available to assist with questions about the theme, including in conjunction with the intellectual property group.