When the so-called “national quarantine” was declared in Poland in March 2020 and employers, especially in the service sector, had to adapt quickly to the new circumstances (in particular, the move to remote working), it was difficult to predict how long this state of affairs would last. At the end of 2021 we now know that the COVID-19 pandemic has changed the labour market landscape in a permanent way and that existing legal regulations are not keeping up with its needs. The best example is the lack of systemic regulation of remote working and the inability of employers to collect information on the vaccination status of their employees.
Challenge for employers
As a return to the office began, a challenge arose for employers – how to ensure safety and minimise the risk of infection in the workplace? Employers’ organisations called for the implementation of legal instruments allowing the collection of information from employees about their vaccination status. In November, the Presidium of the Supreme Medical Council strongly advocated for the possibility of checking whether employees have an EU COVID Certificate – which is currently not legally possible.
Lack of regulations
The provisions of the Labour Code – amended not so long ago as part of the implementation of the GDPR in Poland – specify the information that an employer may require from an employee; however, this does not include health-related information, unless it is provided at the employee’s own initiative. The employer can require this type of information only if it is necessary for it to fulfil its statutory rights or obligations – in other words, if there is a clear legal provision allowing it to be obtained. The problem is that there are doubts as to whether the current provisions of the Labour Code actually contain sufficient legal basis to collect vaccination-related information from employees. Although employers are obliged to fulfil their duty to ensure safe and healthy working conditions, which also means minimising the risk of infection in the workplace, the occupational health and safety regulations are too general to unquestionably allow the collection of information on COVID-19 vaccination status. In practice, this means that an employee can inform his/her employer whether he/she has been vaccinated, but the employer cannot demand that the employee do so. From the employers’ perspective, this has led to a stalemate – on the one hand, it is necessary to protect staff from the risk of infection, but on the other hand, without information on vaccination, there is no effective tool to do so.
Are changes ahead?
Information about work on legislation that would regulate these issues was first published in August 2021. However, the bill did not reach the Sejm (the lower house of the Polish Parliament) until 14 December 2021. According to the bill, an employer may require an employee or a civil law contractor to provide information about having a negative result of a diagnostic test for SARS-CoV-2 performed within the past 48 hours. The tests are to be financed from public funds (up to a limit to be set in a decree of the Minister of Health) and employees (or civil law contractors) will not be required to provide the employer with the results if they can prove that they have already recovered from or been vaccinated against COVID-19. The processing of information on test results and recovery/vaccination status will only be permitted until the end of the epidemic emergency or state of epidemic declared due to COVID-19, and the persons processing the information on behalf of the employer will be obliged to keep it confidential.
The bill is a step in the right direction, but it may disappoint many employers, not least because it is quite vague and relies primarily on the performance of diagnostic tests, which may be difficult to organise in practice. However, it is impossible to know if (and when) the changes will come into force. In the meantime, employers must continue to rely primarily on the common sense of their employees and on their internal policies, which are in line with the current law, and which cannot include an obligation for employees to present a vaccination certificate.
Marta Borówka, Associate