Many employers are currently exploring ways to encourage their employees to get vaccinated against COVID-19. Their primary motivation is to protect the lives and health of their employees, as well as to ensure the staffing levels necessary for the smooth operation of their businesses. Employers are thus seeking to incentivize employees by offering benefits to those vaccinated against COVID-19. Some employers prefer to offer a paid day off for recovery on the day of vaccination, or an additional paid day off (a so-called sick day), but there are also those who have decided to support vaccinated employees with specific material benefits. However, many do not know how to proceed regarding the granting of benefits (whether monetary bonuses or non-monetary benefits), or whether providing such a form of compensation is even in compliance with applicable legal regulations. In the following text, we will provide our legal perspective on the outlined issue, which we have also consulted with the National Labor Inspectorate of the Slovak Republic.
First and foremost, it is necessary to determine where the employer’s interests end and the employee’s freedom begins. From the perspective of labor law, the employer’s efforts to create safe and healthy conditions in the workplace must be based (in part) on anti-discrimination principles.
Since COVID-19 vaccination is currently voluntary and is not mandated by any legal act, an employer may not in any way compel an employee to undergo COVID-19 vaccination unless the nature of the employee’s work or a decree of the Ministry of Health of the Slovak Republic explicitly requires it.
In the Slovak Republic, discrimination against employees on the grounds of gender, marital status, family status, sexual orientation, race, skin color, language, age, poor health or disability, genetic characteristics, faith, religion, political or other beliefs, trade union activity, national or social origin, membership in a nationality or ethnic group, property, lineage, or other status, or on the grounds of reporting a crime or other antisocial activity. (See Section 13(2) of Act No. 311/2001 Coll., the Labor Code, as amended (hereinafter the “Labor Code”)).
Section 13 also imposes an obligation on employers to treat employees in labor relations in accordance with the principle of equal treatment established for the field of labor relations by a special law on equal treatment in certain areas and on protection against discrimination and on amendments to certain laws (the Anti-Discrimination Act).
The prohibition on discrimination naturally also applies to employee compensation, including through the specific provisions of Section 119a of the Labor Code. Differential remuneration of employees outside the scope of this provision is impermissible. The Labor Code does not permit deviation from the obligation to comply with the principle of equal pay for equal work or for work of equal value through an individual agreement between the employer and the employee, nor through an agreement between the employer. The provision of monetary or non-monetary benefits to employees beyond the scope of the Labor Code, whether such a benefit is considered wages or not, should in any case be based on criteria that can be applied to all employees without distinction. The conditions for providing a benefit must not disadvantage any group of employees for a reason protected by anti-discrimination law. The National Labor Inspectorate expressed the same opinion in the statement it provided to us on this subject.
In the case of a financial benefit for vaccinated employees, this would not only disadvantage unvaccinated employees but also violate the principle of equal pay for employees enshrined in the provisions of the Labor Code, from which principle no deviation is permitted, even by agreement between the employer and the employee, or by multiple employees.
Providing a financial bonus to employees for fulfilling a condition unrelated to the work performed (in connection with an employee’s vaccination against COVID-19) may meet the criteria for indirect discrimination. Providing a financial bonus to individuals who have been vaccinated against COVID-19 may create a discriminatory environment at the employer’s workplace, whereby some employees may be disadvantaged despite having worked for the employer longer or having performed their work with higher quality and greater efficiency, etc. Human rights and freedoms may be restricted only on the basis of law and within its limits, with a clear and specific purpose, and only with due regard to the principles of proportionality and non-discrimination, which in this case may clearly be questionable. The National Labor Inspectorate also holds a similar view on the provision of financial bonuses in the aforementioned context.
What are the options for granting paid leave in connection with vaccination?
In accordance with Section 141(3) of the Labor Code, which allows, by individual agreement between the employer and the employee, for the employee to be granted paid leave beyond the scope of the law, the provision of a day of paid leave for recovery on the day of vaccination for each individual dose, or additional paid leave, is not considered discriminatory conduct on the part of the employer. In light of the above, we consider the provision of paid leave to be an appropriate form of benefit, the provision of which we also consider to be in compliance with the relevant legislation.
Employers may implement so-called positive employee incentives; however, care must be taken to ensure that the means used to implement them do not violate an employee’s right to equal treatment.
Employers should adopt this non-discriminatory approach to the provision of benefits in other contexts as well(e.g., the practice of rewarding employees for not taking sick leave during a certain period, which may exhibit signs of discrimination based on the employee’s health condition).
The above opinion is not binding and is merely an expression of our legal view, which has also been consulted with the National Labor Inspectorate. Nevertheless, we do not rule out the possibility that the relevant supervisory authority or courts may reach a different legal conclusion in the future.
