Reflections on the government decree on the protection of workplaces against coronavirus
Since the promulgation of Government Decree 598/2021 (X.28.) on the protection of workplaces against coronavirus (“Government Decree”), we have been hearing reports of companies that are taking advantage of the option of order mandatory vaccination or those that are leaving the decision to their workers. In the following, we would like to look at some aspects of the “imposition” of compulsory vaccination.
One of the most interesting and important issues related to compulsory vaccination is that who is liable in the event of a worker suffering a health impairment because of the compulsory vaccination. Although the question of vaccination remains the sole choice of the employee, in the light of the rules on employers’ liability, the liability for damages of the employers who order vaccination cannot be excluded in general at this point. It is important to know that the legality of the mandatory vaccination is the subject of a number of proceedings before the Constitutional Court and the arising employment law claims will certainly be decided by the ordinary courts.
Health insurance and pension
If the employer makes vaccination a condition of employment, but the employee does not get vaccinated – and is not exempted from vaccination for medical reasons – the employer is entitled to send the employee on unpaid leave. This has numerous consequences for the worker, apart from the fact that he is not entitled to any salary and his obligation to work is suspended. On one hand, the employee’s social security status will be suspended during the period of unpaid leave. On the other hand, the the employee will still be entitled to health insurance benefits, as employers will have to pay health service contributions in respect of workers on unpaid leave due to the emergency situation – until the 60th day after the emergency situation ends.
It is also important to note that during a period of unpaid leave, the employee will not be entitled to sick-pay, and the period of unpaid leave will not count towards the length of service required for an old-age pension.
Under the Government Decree, employers is entitled to process data on vaccination records. In this context, we consider it is important to note that informing employees about the data processing activities is a must.
The Government Decree does not give any guidance on whether the employer is entitled to copy the ID documents, however, the data processing rule of the Labour Code provides that the employer may only require the presentation of the document if it requires the disclosure of personal data relevant to the performance of the employment relationship.