The proposal would allow the employer to move an unvaccinated employee to another job to protect the other employees.
Why can’t the employer inquire about vaccination?
Data on employee health, including vaccinations, are protected by medical confidentiality regulations, including under the Patient Rights Act, the Human Infections and Infectious Diseases (Prevention and Eradication) Act, and the GDPR. And pursuant to the Labour Code, an employer may seek health information about an employee only at the latter’s initiative and with their consent.
Current law does not authorise an employer to enquire whether their employee has got a COVID-19 jab. This poses a real challenge to businesses in the pandemic environment, what with the related business restrictions.
The workplace has tended to be a serious source of coronavirus spread as the nature and organisation of work often significantly hampers social distancing or using a mask while on the job.
Therefore, businesses wanted to have effective tools enabling them to ensure safe conditions of work, especially in the face of the approaching autumn epidemic wave. This is the reason employers cite for why they need to know which employees have been vaccinated and which have not. Such knowledge could help them, for example, to decide on transferring an employee to some other job in an effort to reduce the risk of other employees falling ill.
Indeed, currently employers are bound by valid medical certificates confirming there are no contraindications for a specific employee to work at a specific position. As such, the employer may not transfer an unvaccinated worker to another job or refuse to let them work for that reason.
A remedy for pandemic restrictions
Health Minister’s legislative proposal would allow employers to process their employees’ vaccination data. The law was intended to give employers a tool to help them ensure the operational continuity of the employing establishments.
Commenting on the proposal, the Health Minister explained it did not allow employers to dismiss unvaccinated employees.
The employers’ rights with respect to unvaccinated employees would include the right to transfer them to another job, send them to work from home or give them other responsibilities. The employer would also be authorised to instruct such an employee to take a coronavirus test. On the other hand, a vaccinated employee could be used for direct contact with customers or clients.
In addition, the proposed legislation would offer businesses a way to check whether those using their services have taken a COVID-19 jab.
Employee vaccination information would be available to employers on-line.
According to the Health Minister, the proposed solutions are supposed to limit virus transmission.
Room for abuse
The unions are not overly enthusiastic about the draft. They are afraid unvaccinated employees will end up having worse conditions of work and pay. While health viceminister Waldemar Kraska believes unvaccinated employees should not see their wages reduced, the decision to do so has been left to the employer.
The unions also see the proposed law as potentially discriminatory with respect to vaccination status.
The final draft was to be submitted at the next session of the Sejm on 15 September. But this is not certain. A week before the scheduled session it is yet to be decided whether the draft will be tabled at the next Cabinet meeting or when its submission would ultimately occur. Accordingly, it may prove impossible for the law to be enacted before the autumn pandemic wave.