Checking COVID-19 vaccination status and testing employees – a new bill
On 14 December 2021, a private member’s bill on specific solutions which enable business activity during COVID-19 pandemics was posted on the website of the Polish Sejm (hereinafter: “Bill”). The legislation was announced at the beginning of December, alongside the new restrictions in public spaces. It has been long awaited by entrepreneurs who would like to provide security of their business.
Free tests for employees
According to the Bill, during the epidemics all employees and persons hired under civil-law agreements would be eligible to free SARS-CoV-2 tests. The tests are to be financed from public funds and the limits on the quantity of tests per specified period of time will be determined by way of a regulation of the minister in charge of health. At the same time, it should be noted that the tests may also be financed by the employer (e.g. if the limits established by the minister are exhausted).
Verification of a negative test
According to the Bill, the employer can request that employees and staff employed under civil-law agreements provide information about a negative result of the test for SARS-CoV-2 to be taken no earlier than 48 hours before presentation. The legislator also indicated that this information is to be provided in the form of the employee’s statement, but the employer can request that it is documented by presenting the negative result of the test.
The recovered and vaccinated
The Bill explicitly provides that employees and persons hired under civil-law agreements, who inform the employer about recovering from SARS-CoV-2 or being vaccinated against COVID-19 will be exempt from the obligation to inform about a negative result of the test. As in case of test results, the employer can request that this information is documented by presentation of a certificate confirming recovery from COVID-19 or a certificate of vaccination.
Refusal to provide information and potential consequences
Attention should be given to the provision which stipulates that if an employee or a person employed under a civil-law agreement refuses to inform the employer about a negative result of the test, his/her status as a person recovered or being vaccinated against COVID-19, the employer must treat such a person as having no negative test result, the status of a recovered person or a vaccination certificate.
According to the Bill, with respect to an employee (or a person hired under a civil-law agreement) who informed that he/she has no negative result of the test diagnosing SARS-CoV-2 or the status of a person recovered or is not vaccinated against COVID-19, the employer can:
- make changes in the employing establishment or other places designated to perform work, including changes to the way work is performed by employees;
- make changes to working time systems or schedules;
- request that the employee perform work outside the place specified in the contract, within the same town/city/location, or ask the employee to do another type of work for remuneration which corresponds to such new job, not lower than their hitherto remuneration.
Additionally, the Bill explicitly indicates that the above measures do not break the equal treatment principle.
Mobile application
At the same time, the Bill indicates that the information about a negative result of the test for SARS-CoV-2, the end of isolation or hospitalization or a COVID-19 vaccination certificate may be verified using a mobile application provided by an entity reporting to the minister in charge of health.
Data protection
The Bill provides that information about a negative result of the test, the recovered status or COVID-19 vaccination certificate may be retained by the employer for a period required to accomplish the aim of the Bill, i.e. as long as necessary to counteract the spread of coronavirus, but no longer than by the end of the period of epidemic.
The employer will also be obliged to keep such information in a way which ensures its confidentiality, integrity, completeness and availability. Additionally, such data can be processed only by persons who are authorised by the employer and who have undertaken to keep it secret.
Things we don’t know
At the moment we don’t know the plans regarding the Bill and the timeframe of its processing by both chambers of the parliament and subsequent signature by the President. However, the fact that the bill is introduced as a private member’s bill indicates that the legislator would like to speed up the work over it.
The rumors whereby employees who refuse to be tested or who are not recovered and or in possession of a vaccination certificate can be asked to take a paid or unpaid leave are not confirmed, so the tools offered by the Bill seem illusionary in the fight against the spread of coronavirus.
However, adoption of the bill will enable verification of the vaccination level of personnel and will enable the employer to plan additional measures if required.
Should you have any questions in this respect, you are welcome to contact our experts.
KONTAKT
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