Dušan Nitschneider, Firm: Nitschneider & Partners
A recent initiative would allow employers in Slovakia to offer employees days off for, and following vaccination and a financial incentive to get vaccinated, but raises potential data protection and discrimination issues.
A recent proposed amendment to the Slovakian Labour Code aims to increase motivation to be vaccinated against COVID-19. To achieve this goal, the new legislation should free employers to incentivise employees to be vaccinated and allow them to provide employees with:
- leave on the day of vaccination;
- one to five days additional post-vaccination leave; and
- a financial contribution up to EUR 275.
The move comes at a time when efforts to speed up vaccination are plateauing, both among employees and in the general population, at a time when people are returning from leave and children are entering school and with a rapidly unfolding third wave of the pandemic.
Given the amendment was submitted by a member of the non-coalition party, its political fate is questionable. Equally questionable is timing: even the possible adoption of the amendment would probably not be able to quickly increase vaccination of employees and thus mitigate the course of the third wave of the pandemic. Apart from these issues, the amendment raises several labour law difficulties, which would require resolution.
Firstly, current legislation in the field of personal data protection does not give employers the right to access information on individual employees’ health status. The employer’s OHS obligations do not provide a legal basis for the processing of personal data. Even voluntary, benefit-motivated provision of data by employees on the basis of this ‘incentivised’ (conditional) consent does not address the issue of the legal basis for processing.
The answer to the question of whether the adoption of the amendment in question would create a (legitimate) legal basis for the processing of this data is also uncertain. The priority of personal data protection over fulfilling OHS obligations has not only been emphasised by the Slovak National Labour Inspectorate (NIP) in its guidelines (see here), but also by the European Data Protection Supervisor (EDPS): personal data protection rules take precedence over OHS responsibilities (see here).
Secondly, if the amendment manages to deal with the obligations arising from the protection of personal data, there is another obstacle in the form of the rules on equal treatment (non-discrimination). The NIP guideline also emphasises the fact that employers may not treat employees differently on the basis of any internally set criteria which are not grounded in the nature of the activities carried out in the job or the circumstances in which those activities are carried out. The provision of leave or a financial contribution would quite clearly be based on criteria which are not based on the nature of the activity but on health criteria.
The same wording is given in the June EU Regulation (2021/953) on the ‘EU Digital COVID Certificate’, which states:
‘it is necessary to prevent direct or indirect discrimination against persons who are not vaccinated, for example because of medical reasons.’ (see here)
The amendment does not take this category of employees into account in any way, and thus in a way creates, in this respect, a discriminatory framework.
In conclusion, the idea of supporting vaccination with such a straightforward step at a time when society is frustrated by the conflicting views of advocates and opponents of vaccination and not very effective support tools (vaccination lottery, brokerage bonus) deserves attention. Even if it cannot slow down the third wave, it would probably help in the fourth and possibly every subsequent one. Guidelines for multinational giants such as Google and Amazon at their US headquarters can guide its assessment. However, when taking inspiration from across the ocean, it is important to take into account the geographical and cultural aspects. America, compared to Europe, places more emphasis on the concept of freedom and has a much more liberal attitude towards personal data. On the contrary, Europe takes a more conservative approach to these issues, seeking to place greater emphasis on equality. If this does not change, which is certainly not anticipated in the short term, we cannot expect a shift from the emphasis on personal data protection in the context of vaccination.