In light of the ongoing coronavirus pandemic, the Government of the Slovak Republic has decided to conduct nationwide testing of the population for COVID-19. However, this situation has divided society into two camps—those who welcome the nationwide testing and, conversely, those who strongly oppose this measure.
Based on a pilot testing project conducted from October 23, 2020, to October 25, 2020, in certain districts of Slovakia, the government adopted a resolution imposing a ban on commuting to work for individuals who are unable to provide proof of a negative COVID-19 test result. Proof of a negative result could be provided based on an RT-PCR test or a certificate issued by the Ministry of Health of the Slovak Republic showing a negative result from an antigen test certified within the European Union for COVID-19. The restriction on movement is extended until November 8, 2020 by the new Slovak Government Resolution No. 693 of October 28, 2020.
For individuals who do not participate in this testing, a 10-day stay-at-home order (quarantine) applies, and this quarantine will naturally also affect citizens’ ability to perform their work. In the following paragraphs, we will therefore examine the labor law consequences in the event that an employee does not participate in the nationwide testing and is also unable to prove a negative COVID-19 test result by other means.
First, we consider it appropriate to address the situation where the employer does not require its employees to participate in testing. However, we note that the employer cannot directly mandate participation in mass testing. An employer may order testing, but it is up to the employee to choose which form of testing to undergo. The Government of the Slovak Republic has repeatedly emphasized that mass testing is voluntary, but has urged citizens to participate in the testing in as large a number as possible. Therefore, if an employee decides not to participate in testing on October 31, 2020, and November 1, 2020, they will be required to undergo a ten-day quarantine, beginning on November 2, 2020. However, this situation does not automatically mean an inability to perform work.
Already during the first wave of the pandemic in the spring of 2020, the government adopted several amendments to Act No. 311/2001 Coll. the Labor Code (hereinafter referred to as the “Labor Code”), aimed at mitigating the consequences of the pandemic so that employees whose work permits it could perform their duties from home, i.e., via “home office.” In this regard, we refer in particular to the provision of Section 250b of the Labor Code,
according to which an employer is entitled to order an employee to work from home if the nature of the work permits it, and at the same time, an employee has the right to work from home if the nature of the work permits it and there are no serious operational reasons on the employer’s part that prevent work from being performed from home.
In the case of work that can also be performed as home office, under current legislation, the employee should be allowed to work from home during the 10-day quarantine. Therefore, it may be problematic if an employer does not allow an employee to work from home despite the fact that the nature of the work permits it, and especially if the employee has previously worked remotely (e.g., the employee could demand to perform work, and any failure to assign work could be considered an obstacle to work on the part of the employer, i.e., with an obligation to pay wages under the Labor Code.
However, a different situation arises when working from home is not an option. In such a case, the option to take vacation comes into play. According to Section 250b(4) of the Labor Code, the employer is entitled to order the taking of vacation at least 7 days in advance; in the case of carried-over vacation, this period is reduced to only 2 days in advance. However, we note that nothing prevents an employee from agreeing with the employer to take vacation on the nearest available date.
The final possible solution to the situation described is to classify it, in accordance with Section 137(4) of the Labor Code, as an obstacle to work due to the performance of a civic duty. In this case, the employer is obligated to excuse the employee’s absence from work; however, it should be noted that the employee is not entitled to wage compensation for this period—in other words, this constitutes unpaid leave. It is important to note, however, that during this period, the employer does not make health and social insurance contributions on behalf of the employee. The employee, however, has the option to make these contributions for this period independently.
A different procedure applies in cases where the employer mandates employee testing or requires proof of a negative test result.
First and foremost, it is necessary to address the question of whether the employer is authorized to impose such an obligation on employees. We are of the opinion that, in accordance with the provisions of Section 6(1)(a), Section 6(7),
Section 8(1) in conjunction with Section 12(2)(a) of Act No. 124/2006 Coll. on Occupational Safety and Health, as amended, and Section 81(a) and Section 148(1) of the Labor Code, and in connection with Section 30(1)(a) of Act No. 355/2007 Coll. on the Protection, Support, and Development of Public Health, as amended, the employer is entitled to impose such an obligation on its employees. *We have requested information on this matter from the National Labor Inspectorate, but have not yet received a response; we will update this article upon receipt.
Therefore, if an employer requires its employees to be tested for COVID-19, the employee is obligated to undergo one of the available forms of testing. At the same time, the employee has the right to undergo testing without any risk to their life or health. There are several options for undergoing such testing. First and foremost, the employer has the option of arranging testing on its premises or at healthcare facilities. Testing may also take place as part of a publicly available, mass testing campaign; however, the employer cannot require an employee to participate in such mass testing. An employee may also arrange for the test themselves; if they do so at the employer’s instruction, the employer is obligated to cover the testing costs.
However, it is far more important to address the situation where an employee does not participate in any testing (neither mass testing nor other testing ordered by the employer), and thus the employee will not be able to provide proof of a negative COVID-19 test result on or after November 2, 2020.
In such a case, as in the first scenario, a ten-day quarantine applies, which the employee may cover, for example, by working from home, taking vacation time, unpaid leave, or in another manner agreed upon with the employer (for example, granting time off work due to other obstacles to work with or without wage compensation; alternatively, an agreement may be reached whereby the employee subsequently makes up for this time off). However, this quarantine obligation applies only in connection with the nationwide testing and Government Resolution No. 693 of October 28, 2020. At other times, the employee would not be required to undergo quarantine if they did not participate in the testing mandated by the employer.
However, if an employee fails to get tested despite the employer’s requirement—i.e., cannot provide proof of a negative test result after November 2, 2020—and if no agreement is reached between the employee and the employer regarding the organization of work or time off for this period, the employee will not be able to report to work and perform their duties for 10 days (during the duration of the quarantine measure). Only in this case can we speak of an employee’s unexcused absence. Unexcused absence from work may result in negative consequences for the employee. The Labor Code authorizes the employer to deduct vacation days from the employee’s balance by one to two days for each day of unexcused absence from work. For the days the employee is absent from work, the employer does not make health and social insurance contributions; however, the employee has the option to pay these contributions separately. Absence may also be assessed by the employer as a breach of work discipline, classified as either “minor” or “serious,” depending on the specific circumstances of the case. The employer must always conduct this assessment on a case-by-case basis, taking into account all factors related to the employee’s work performance, the impact of the breach, and so on.
A serious breach may constitute grounds for immediate termination of employment. In the event of immediate termination, the employee is not entitled to a notice period and is also not entitled to severance pay, regardless of the number of years worked for the employer. If the employer assesses such conduct as a “less serious” breach of work discipline, they may issue a written warning to the employee regarding the breach, while simultaneously warning them that if they commit another breach of work discipline within the next six months, even though it may be less serious, the employee may be terminated.
It is clear that this situation will cause complications in practice, and employers may face risks regarding smooth operations and a shortage of personnel following nationwide testing. However, given that this is a new situation that has not yet arisen in the history of the Slovak Republic, and that it involves a sensitive area where the lives and health of people on both sides may be at risk, employers should prioritize a more lenient approach to the situation when it comes to imposing consequences. Any disputes that could potentially arise from this situation have not yet been the subject of our courts’ case law, and so it is very difficult to predict what outcomes such legal disputes would yield.
However, if an employer has imposed an obligation on employees to get tested, in accordance with the conditions outlined above, the employee should fulfill this obligation; otherwise, they expose themselves to justified consequences for breaching the obligation imposed by the employer. At the same time, it is important to realize that the purpose of these measures is to protect the life and health of both the specific employee and all other employees and individuals present at the employer’s workplace.
The team of experts at the law firm Hronček & Partners, s. r. o. is fully available to assist you with any questions in this area. Our experts will gladly provide legal assistance and answer any questions, not only regarding the topic discussed but also in various other areas.
