With the appearance of multiple vaccinations and an increase in vaccine production capacities, we expect to reach a level this year when vaccination becomes available to the general public on a social security basis or through a private healthcare provider. In preparation for this time, many employers consider the following questions: Can I make vaccination compulsory? What are the consequences for an employee not taking the vaccine? Can I terminate an employment for this reason? Can I oblige the worker to wear a mask because he is not vaccinated?
However, until there is sufficient vaccination, the employer remains obliged to ensure healthy and safe working conditions. In addition to keeping distance and working from home, testing is one of the tools an employer can use to meet this obligation.
First, let’s see the labour law and data protection issues arising in connection with testing. It is the duty of every employer to prepare for the threat. It is particularly recommended to carry out a risk assessment with the involvement of a health and safety specialist and an occupational physician. The purpose of this is whether it is necessary to test the workers at all or whether it is sufficient to otherwise prevent the spread of the virus. If the risk assessment shows that the introduction of testing is justified, the frequency, modalities and scope of the workers involved must be specified. In terms of frequency and method, it should also be taken into account that PCR testing may involve nasal damage which requires sufficient time to heal. The cost of testing shall be paid by the employer in all cases, unless the need arises in the sphere of influence of the employee.
In anticipation of data processing irregularities, we emphasize that the results of the testing can be disclosed to the employee in a way that ensures anonymity. It is advisable to outsource the data processing related to testing to an external healthcare provider or occupational physician to ensure data security.
In addition to testing, employers should also get ready for labour and data protection issues related to vaccination. On the one hand is the economic interest of the employer and the interest of customers, buyers, other persons, as well as the obligation of the employee to maintain a safe working environment that does not endanger health. This contrasts with the employee’s right to health self-determination (since vaccination is not mandatory) and their rights to privacy. This conflict should be resolved primarily by the legislator or alternatively by the resolution of the data protection office but both are yet to come. The question whether someone is vaccinated may first be considered in the recruitment procedure but we recommend avoiding such question for applicants. The vaccination of a person is health data that fall within the concept of privileged personal data that is as sensitive as the issue of sex life or religion. The principles of purpose limitation of data processing and the prohibition of discrimination would both be violated if the employer would not establish an employment relationship with the applicant because he or she is not vaccinated.
The next case is when, due to the nature of the employer’s activity, the employees work in close contact with each other or meet with clients or external employees. In this event, there is a chance that at any time, COVID-19 positive people will enter the workers’ community, but the impact of this source of danger can be significantly reduced if workers are immune. For this reason, the employer could require employees to be vaccinated and to present proof of this. Without disputing the basis of the employer’s claim, we take the view that employers should seek to increase the level of immunity in the workers’ community by promoting vaccination instead. In our view, it is unlawful to base the termination of employment on the mere absence of a vaccination. There is no doubt that the employer may require the use of masks to ensure healthy and safe working conditions. However, an employee holding a vaccination certificate may be exempted from this by their employer, provided that this exemption does not conflict with other legislation. In the case of a refusal of the prescribed mask use, the employment relationship may be terminated only if the employee refuses to wear this personal protective equipment or fails to do so despite repeated warnings that include information on legal consequences, and does not prove the reasons for eventual exemption with a vaccination certificate.
It would follow from all the above that the employer could exempt employees from the obligation to wear masks who have been vaccinated or are otherwise immune to the disease and prove this by presenting an authentic instrument. However, currently neither the period of immunity provided by the vaccine nor the efficacy of the vaccine against all variants is fully known. In view of this, we currently recommend that employers prefer solutions – primarily involving the use of personal protective equipment – that are able to ensure safe working conditions and involve as little personal data as possible.