During the COVID-19 pandemic, our usual work habits changed completely. From the well-established mechanism of going to the office, we moved to an armchair in our living room. Are we now returning to work from business premises? What are the conditions for us to return to the office? What are employers allowed to do to implement occupational health protection measures and what are they not allowed to do? All these issues have not yet been fully resolved, although it is evident that their resolution is becoming increasingly important day by day. For this reason, the Ministry of Labor, Employment, Veterans’ Affairs and Social Affairs (hereinafter “the Ministry”) has given an Opinion on the two most frequently asked questions these days: can vaccination be a condition for the return of employees to the office and can employers give financial incentives to employees to get vaccinated?
An employer has the full right to raise the awareness of their employees regarding the benefits of vaccination. The employer can openly express their position and express support to the competent authorities in that direction. However, when it comes to the possibility of imposing vaccination as a condition for employees to return to work in business premises, the situation is different. Namely, the fact whether an employee has been vaccinated or not cannot be a criterion for deciding on their rights or obligations in accordance with labor law regulations.
This was also confirmed by the Ministry, pointing to a provision of the Labor Act which allows an employer and employees to agree that the employee performs a part of their work from home, when it suits both parties and, of course, when such work is possible.
Therefore, an employer cannot independently impose vaccination as a condition for returning to work in business premises. Furthermore, data on whether an employee is vaccinated is health data, and as such it is classified as a special category of personal data, the so-called particularly sensitive personal data. Special processing rules apply to this data, so employers should pay extra attention if they decide to collect data on the vaccination of employees.
It is expected that an employer will want to take all preventive measures to reduce the risk of spreading the infection within their company in a timely manner. However, the line between justified prevention and illicit incentives or even discrimination is thin nowadays, so it remains to be seen if employers can financially encourage employees to get vaccinated.
According to the Labor Act and the opinion of the Ministry, financial incentives for vaccination are considered as other income of employees. This income is determined by the general act of the employer, such as collective employment agreements or employment rulebooks, as well as individual employment agreements between the employer and a specific employee.
Therefore, there are no obstacles for an employer to use financial incentives to encourage employees to get vaccinated, if the incentives are predetermined – by a collective agreement, rulebook, or individual employment agreement.
What we can conclude from the Opinion of the Ministry is that the integrity of a person is inviolable, and its preservation is a value that must be preserved -regardless of the circumstances. On the other hand, the Ministry recognized that collective action is the only way to overcome the situation created by the COVID-19. With this Opinion, the Ministry adequately answered the questions raised, confirming once again that the awakening of collective consciousness is the basis for resolving crises.
