According to a statement recently issued by Slovakia's National Labour Inspectorate (NLI), Slovak employers are limited in their ability to request information from employees about COVID-19 vaccination or testing results. Although the NLI statement is an opinion with little legal impact, this guidance interprets existing Slovak and EU regulations and brings clarity on the issue of when employers in Slovakia can request proof of vaccinations or negative tests from employees.
Because an employee’s health is a private issue and information on an individual’s vaccination status is personal data, an employer needs legal grounds to process such information, which do not exist in Slovakia. However, under the EU's General Data Protection Regulation (GDPR), data on the health status of individuals can be processed, but only if necessary for reasons of public interest in the field of public health and protection against serious cross-border health risks, which could include the COVID-19 pandemic.
Additionally, there is also a “precautionary obligation”, which means the employer is obliged to create a safe work environment free of threats to health to their employees, which entails some measures for preventing risks to health and safety. Therefore, some claim that an employer should be allowed to request vaccination data from their employee, and the employee could be obliged to share this data with the employer to the extent necessary to ensure health and safety.
In this article we provide a short summary of the NLI statement, which specifies what information employers can request and how they must treat employees. However, note that the NLI considered this topic mainly from an employment law perspective and not as a data protection/GDPR related issue.
The principle of equal treatment
An employer must treat employees in accordance with the principle of equal treatment. Therefore, no employee can be discriminated against on the grounds of the personal choices they make, including in relation to the COVID-19 vaccination. According to the NLI, there is no valid or effective regulation that would entitle the employer to treat unvaccinated (or untested) employees differently than other employees.
Furthermore, the NLI states that promoting vaccination against COVID-19 must be based on non-discriminatory principles in terms of labour law. We understand this means that employers should be careful, when offering financial or other work-related bonuses, such as additional holiday or other benefits, for employees that provide proof of vaccination.
Can employers request that employees be vaccinated or give proof of negative tests?
The NLI also states that it is not lawful to either require information on vaccinations from employees or order mandatory testing. In addition, it is not lawful for an employee to be asked to provide proof of a negative test result. Additionally, there is no regulation that would entitle the employer to obtain and process data on the employee’s vaccination history. This means that the efforts of employers to create safe and healthy conditions in the workplace must be based on non-discriminatory principles when it comes to vaccination and testing.
Restricting or preventing the entry of unvaccinated employees into the employer's designated premises carries the assumption that the employer has acquired and processed information on vaccinations or on testing results. Moreover, this approach would mean that the employer must segregate employees (i.e. treat employees differently), which is not in line with provisions of the Slovak Labour Code on equal treatment.
The NLI further concludes that neither the Act on the Protection of Public Health nor the Act on Health and Safety at Work gives an employer the right to perform mandatory testing for COVID-19 or limit unvaccinated employees in the workplace (with the exception of some medical professionals).
Based on the above, the NLI has determined that if an employer restricts or prohibits certain employees (i.e. unvaccinated workers) from entering its premises and, as a result, does not assign work to this group, the employer should reimburse the employees concerned in the amount of their average earnings.
This statement by the NLI brings some clarity to what employers can require of employees in terms of vaccination and testing. However, this statement is merely the opinion of the NLI and therefore is unlikely to be the last word on this complex issue. We will continue to follow this topic closely and will provide updates on future developments.
For more information on how vaccination regulations in the workplace could affect your Slovak business, contact your CMS client partner or local CMS experts.