Can an Unvaccinated Employee Be Fired More Easily?
From 17 August, there is an amendment that states clearly that in order to ensure safety from infections for employees, employers should either vaccinate or test the employees or request a certificate that proves safety from COVID-19. However, the amendment did not bring new opportunities for the employers, instead clarified the existing ones.
Even before the amendment, the regulation required that if employees of the company had contacts with COVID-19 during their work processes, the employer had to assess in the risk analysis, which are the risks for the health of their employee in relation to the spreading of the virus and which measures should be taken to manage these risks. For example, vaccination, using of personal protective equipment or other measures could be applied to manage the risks. However, the employer decided on the relevant measures based on the risk analysis.
Now the legal act is clarified regarding which are the preferred measures for managing the employee health risks when the health risk is related to COVID-19 and an employee has contacts with other persons in the working environment, e.g. other employees or clients. In such case, efficient measures are first and foremost vaccination, proof of safety through having had COVID-19, testing or vaccination certificate as well as testing of employees. At the same time, it does not mean that the employer is necessarily required to introduce these measures. In reality, employers are required to consider, which measures are proportional and relevant in the specific working environment and for the nature of work of the specific employee, and which adequately ensure managing of risks assessed in the risk analysis. For example, vaccination may be necessary if an employee has daily and intense contacts with persons who are part of the COVID risk group. At the same time, vaccinating would not be purposeful in case of a night guard of the same company who does not have any contacts with anyone in the working environment.
Thus, it may happen that risks can and must be managed through other measures entirely, e.g. through reorganising work, using personal protective equipment or following hygiene requirements. In such case, vaccinating, testing or requesting a certificate is not necessary or relevant.
Making redundant did not become easier
Nothing specific changed in terms of making employees redundant. If an employee refuses to do what the employer has foreseen in the risk analysis action plan (e.g. refuses to vaccinate), the employment contract with such employee can still be terminated only as a last resort, if work cannot be rearranged or risks cannot be managed in any other manner, and the employee has also been warned.
The Chamber supported the amendment
The Chamber considers it positive that the legal act foresees more clearly that employers have the right, in justified cases, to demand from the employees’ vaccination or testing or presenting a relevant certificate. Based on the Chamber’s proposal, the explanatory memorandum to the draft act became clearer in terms of the fact that the freedom to decide on choosing the relevant measures (e.g. to vaccinate or request a test or use another measure), will remain with the employer.