The possibility of the employer to investigate whether its employees are vaccinated against COVID-19 was subject of heated debate in Slovakia. The prevailing view was the employer could not request such information from them as allegedly there was no legal basis for it in the Labour Code or other regulations. Surprisingly, such view was also supported by the Slovak National Inspectorate of Labour that claimed it should be up to the employees whether they inform the employer about their vaccination. There were also discussions whether obtaining such information by the employer complies with the GDPR.
Nevertheless, the Slovak Labour Code requires the employer to take measures for ensuring safety and protection of health of its employees at work. Under the assumption the vaccination decreases the risk of contracting COVID-19 it naturally helps ensuring such safety and protection. Without doubts, it is in the interest of the employers that their employees do not contract COVID-19 as they may be required to remain in a lengthy quarantine. Absence of a larger number of employees may potentially lead to temporary closing of the operations. In a worst-case scenario, the employer may be forced out of business. There are thus surely legitimate reasons for the employers to investigate whether their employees are vaccinated, have already overcome COVID-19 (and still have sufficient antibodies) or at least have a valid negative test against it.
Given the above discussions, the Slovak parliament adopted legislative changes aimed at strengthening the position of employers that started applying from 15 November 2021. Based on these changes, the public health authorities will have (under certain circumstances) the possibility to impose measures requiring that employers in specific regions prevent their employees from entering their workplace unless they present a valid confirmation about their vaccination or that they have already overcome COVID-19. Alternatively, the employees must be given a possibility of being tested against COVID-19 at the full expense of the employer. Currently, it is not entirely clear whether the government shall cover all or at least part of the costs of such testing.
Employees who do not present a relevant confirmation or negative test against COVID-19 will have to be prevented from entering the workplace. In such case they will not have a claim for a salary compensation. However, it does not prevent the employer to provide them such compensation anyway or for example agree with them they will take a holiday or work from home.
Such restrictions should be generally imposed only on employers in regions with the worst epidemiologic situation. Nevertheless, the other employers may also decide to prevent their employees from entering their workplace unless they present a valid confirmation or a negative COVID-19 test, but only in case it is necessary to ensure protection of health at work, including such organization of work that shall eliminate or decrease the risk of spread of COVID-19. Such employees who failed to present the necessary evidence and were thus prevented from entering their workplace will, however, have a claim for a salary compensation.
By Peter Oravec, Partner, and Jan Augustin, Attorney at Law, PRK Partners