The Czech government has adopted changes to the mandatory testing of employees for COVID-19 at the workplace. In essence, as of 17 January 2022, employers will be obliged to arrange for the testing of all employees (including those who are vaccinated/recovered) for COVID-19 twice every week. Below is an overview of the most frequently asked questions.
When are the changes effective?
The changes are effective from 17 January 2022. Until then, testing should be carried out to the original extent.
What has been changed?
- Vaccinated employees and employees with proof of recovery are no longer exempt from the testing.
- Employees present at the workplace must be tested twice a week. It is, however, not mandatory to test employees prior to allowing them entry to the workplace.
- In case an employee tests positive following the antigen COVID-19 test provided by the employer, the employee is obligated to quarantine for 5 days. A confirmatory RT-PCR test is no longer mandatory.
- The employer is obligated to send a list of employees who test positive to the hygienic authority.
- The employer may no longer require employees to submit proof of vaccination / recovery (i.e. the relevant EU Digital COVID certificate) for the purpose of entry to the workplace.
- Records of the COVID-19 testing must be retained for 90 days.
Who must be tested at the workplace?
All employees must be tested at the workplace, except for:
individuals who present a negative result of a RT-PCR test, not older than 72 hours;
- individuals who present a negative result of a laboratory rapid antigen test, not older than 24 hours; or
- individuals who, due to the nature of their work, do not come into contact with third parties at the workplace save for members of a common household.
Agency employees are considered as employees. Independent contractors, as well as members of company bodies (e.g. executive directors) present at the workplace have an obligation to undergo the testing under the same conditions as employees.
How often do we have to test employees?
Employees must be tested twice a week. There must be a gap of at least three days between individual tests (e.g. the first round of testing on a Monday and the second round of testing on a Thursday).
If an employee is not present at the workplace on the day of testing, such employee must be tested on the day of their arrival at the workplace.
What tests do we have to provide to employees?
The employer must secure rapid antigen tests designed for self-testing (suitable for use by a lay person).
Where should we perform testing?
Testing should be performed at the workplace, not at home.
Can we ask employees to undergo the test at a public testing site or at home?
The employer has an obligation to provide the tests, therefore you should not transfer the responsibility to employees by asking them to take their test at a public testing site. If, however, an employee presents an up-to-date test from a public site (see above), such employee can be admitted to the workplace (i.e. you do not have to perform an additional test at the workplace).
Testing should be performed at the workplace, not at home.
Do we have to test employees working from home?
No, employees working from home do not need to be tested. However, if such employees plan to come to the workplace, or visit a client, then a test is required.
Are employees obliged to take the test?
Unless an exemption applies, employees are obliged to undergo the COVID-19 test based on the request of their employer.
Can we require a proof of vaccination / recovery?
Not for the purpose of entry to the workplace.
What if an employee refuses to take the test?
In case an employee refuses to take the test (and no exemption applies), you must notify the hygienic authority. An employee who refuses the test must wear a respirator at all times when in the workplace, keep a distance of 1.5 metres from other individuals (if the nature of the work allows it), and be separated for meals.
The employer is obligated to adopt organizational measures to limit the meeting of this employee with other persons to the necessary extent (e.g. ask the employee to work from home).
A refusal to undergo the testing by the employee may also justify a formal warning letter for misconduct from the employer.
What if an employee tests positive?
In case an employee tests positive following the antigen COVID-19 test provided by the employer, the employee must without any delay notify the employer and leave the workplace and return to their residence.
The employee is obligated to stay in quarantine for 5 days. If the employee wants to terminate quarantine preliminarily, they would have to present to the hygienic authority a negative PCR test which was performed after the positive antigen test. The employee would then be obligated to return to the workplace as the quarantine had ended.
In any case, after expiry of the 5-day quarantine, the employee will be obligated to return to the workplace and undergo testing organized by the employer on the day of his/her arrival at the workplace.
Do we have to report the employees who test positive?
Yes. You are obligated to send to the hygienic authority a list of all employees who test positive.
The notification must contain basic identification data of the employee (name, surname, date of birth, insurance number), data on the employee's health insurance company, the date of the test, the result of the COVID-19 test and the phone number of the employee.
This notification must be sent electronically at the latest on the following working day after the day of testing.
Do we need the consent of employees with processing the test results?
No, as it is in the public interest in the field of public health and you have a legal obligation to process and collect the data (including the data about health) you should not ask for consent, but you have to inform the employees about the processing, including its legal basis, recipients and retention period.
What are the main obligations to ensure the processing of personal data in this context is legal?
In particular, you have to inform employees about the processing and update your records of processing activities.
You also have to ensure that the data are only used in direct connection with the fulfilment of the obligations imposed by the extraordinary measure and that you store only the necessary extent of the data. If an employee takes a COVID-19 test, you should only store basic identification data of the employee (name, surname, date of birth, insurance number), data on the employee's health insurance company, the date of the test and the result of the COVID-19 test. If the employee is exempt, you should limit the processed data to the identification data of the employee and the reason for the exemption from testing.
Furthermore, as with every processing of personal data, you should ensure that access to the data is limited only to authorized persons that have a need to know and that the data are secured.
Can we record the test results?
The law explicitly imposes on the employer an obligation to keep evidence of the performed tests in the following extent – basic identification data of the employee (name, surname, date of birth, insurance number), data on the employee's health insurance company, the date of the test and the result of the COVID-19 test.
How long can we keep the data?
The mandatory period of keeping records in the above extent is 90 days.
What should we do if we need to engage third parties as our service providers?
If the third party as your service provider has access to the personal data, you have to review whether a data processing agreement is in place and whether this processing is covered by the agreement (in particular whether health data and the relevant purpose are stated).
Who bears the costs for the tests?
The employer bears the costs for the tests. However, the government has confirmed that employers will be able to claim a contribution from the health insurance company.