As summer holidays end and employees return to offices and workplaces, the Czech Republic is again facing an increase in COVID-19 cases. As a result, employers are attempting to prevent the spread of COVID-19 in the workplace in various ways, such as making vaccination a condition for employees to enter the employer’s premises or even to remain in the current employment relationship. This raises the question: is it lawful to distinguish between vaccinated and non-vaccinated employees, even for the sake of providing a safe working environment, which is the obligation of every employer?
In the Czech Republic, non-discrimination and equal treatment is an integral principle of labour law. We believe that the most common reasons for not getting vaccinated could be one’s disability, age, religion, belief, or worldview, which is broadly defined and not limited to the most established world religions. Therefore, limitation of access to the workplace due to an employee's decision not to get vaccinated would be discriminatory and, therefore, unlawful. Additionally, some employees may perceive it as an indirect obligation to undergo vaccinations, which may be imposed only by law. Given the above, employers cannot restrict access to the workplace by establishing an "only vaccinated persons allowed" policy. For the same reasons, employers also cannot make vaccinations a condition of employment.
On the other hand, the Ministry of Health claims that employers can introduce the mandatory testing of employees for the purpose of occupational safety and health (OHS). But even mere testing may interfere with the integrity of an individual. Therefore, from the legal point of view, the legitimacy of mandatory testing imposed by the employer remains questionable. Before implementing workplace testing of employees, employers should carefully assess the necessity of this measure and the targeted employee population. They should also consider offering alternative solutions to employees, thus making testing voluntary. In any case, employers must bear the costs of testing or any other health and safety measures.
What can employers do to create the safest working environment? A general recommendation is to implement various safety measures for a specific group of employees (e.g. wearing face masks, social distancing) after prior consultation with OHS experts, taking into consideration whether employees have been vaccinated, tested, contracted COVID-19 during the last 180 days, or none of the above. These measures aim to fulfil the employer’s health and safety obligations and do not discriminate against employees because of their vaccination status.
Implementing the above measures inevitably requires the processing of employee health data. We believe that during the pandemic, the processing of such sensitive data is justifiable to the extent necessary to ensure workplace safety. However, employers must not use this data for other purposes, such as providing vaccinated employees with additional holidays or even financial bonuses. When processing health-related data, employers must always adhere to strict data privacy requirements.
In conclusion, limiting access to the workplace on the grounds of non-vaccination is not possible under currently applicable laws, as it provides different employees with different treatment and violates equal treatment principles embedded in the law and could give rise to discrimination claims or administrative sanctions. To provide a safe and healthy working environment under legal regulations, employers should consult with OHS experts over any safety measures. The pandemic has raised many questions, and not just legal ones, which still have no clear answers. COVID-19 has also opened up discussions that have helped us understand the true business needs of our clients for which we always try to find the most practical and legally compliant solutions.