Coronavirus – obligations and rights of employer and employee

Coronavirus is quickly spreading both in Europe and around the world. How can employers counteract the outbreak? What steps can they take without violating the provisions of the Labour Code and the GDPR?

Coronavirus – what preventive measures are permitted under the labour law and the GDPR?

More countries report new cases of coronavirus infections, i.e. SARS-Cov-2, causing the disease called COVID-19. The Ministry of Health and the Chief Sanitary Inspectorate have issued appropriate recommendations, including information for people travelling by plane and returning from China.

Under the threat, many companies, especially international ones, have begun to take a number of preventive measures, including the elaboration of contingency plans, the temporary introduction of remote work, or the exemption from the obligation to work for employees returning from places where COVID-19 occur. What does the labour law say about this?

The Labour Code does not regulate issues related to taking actions by employers aimed at preventing the spread of viral diseases. Although Section X of the Code (in particular Article 207 of the Code) imposes an obligation on an employer to provide employees with safe and hygienic working conditions, and Section II, Chapter IIb of the Code defines the principles of employment in the form of telework in the company, but this does not apply to epidemic. Moreover, the Labour Code does not regulate temporary work from home, the so-called home office.

Under the provisions of the labour law, for example, in the case of an employee returning from a business trip to the country where more and more cases of infection are reported, an employer may introduce remote work (home office), but only with the employee’s consent and in the form defined by the applicable company`s regulations or under the agreement with the employee and in accordance with the existing remuneration conditions.

Furthermore, an employer may exempt an employee from the obligation to provide work while retaining the right to remuneration because of the necessity to maintain safe and hygienic work conditions, but there must be clear premises for this, i.e. there must be a significant risk associated with a threat to the health or life of the employee. Otherwise, the employee may appeal against this decision or consider it a sign of mobbing.

An employee, on the other hand, may, after prior notification to his employer, refuse to perform the duties assigned to him or not to report to work only if there are circumstances that directly endanger his life and health. The Labour Code does not regulate situations related to epidemics of viral diseases. In such exceptional situations, it is up to the legislator to introduce additional regulations, until then, the applicable laws must be complied with.

There is little that the employer can do if he wants to direct the employee complaining about, for example, fever or muscle pains, for additional medical check-ups or if he wants to measure employee`s temperature. Under the GDPR, the employer cannot measure the temperature or assess the health of employees without their consent. Health data are personal data and are protected.

Labour law does not provide for directing employees to medical examinations in connection with an increased risk of diseases, including viral diseases. With regard to ordering medical check-ups and periodic examinations, the legislator has specified that an employer may only order a medical check-up of an employee if the employee has been unable to work for more than 30 days because of an illness, or if the date of the next periodic health examination is approaching.

Therefore, there is no legal basis for an employee to be sent for medical check-up without his consent, even if he shows symptoms of illness, complains of a fever or if he has just returned from a trip to the country where the cases of infection were recorded. The employee should consult a doctor on his own.

However, the exceptions are the rules of compulsory sanitary and epidemiological examinations and the decisions of temporary or permanent incapacity to work, as defined in the Act of 5 December 2008 on Preventing and Combatting Human Infections and Infectious Diseases.

Coronavirus, and employee business trips and leaves

Business travelling is a common practice in modern companies. However, some employees may be concerned about their health when visiting a country with a significant number of infections and in consequence refuse to go. Is this legal?

Yes, but only if an employee goes to a country where the disease is spreading or whose authorities have taken special precautions, for example, public transport has been suspended or schools and public facilities such as cinemas, amusement parks, etc. have been closed down. The information and guidance of the competent state authorities are relevant in this case.

Travelling to China, South Korea, Italy (in particular to the regions of Lombardy, Veneto, Piemonte, Emilia Romagna), Iran, Japan, Thailand, Vietnam, Singapore and Taiwan may present a high risk. Detailed information for travellers is available on the website of the Ministry of Foreign Affairs.

What measures should an employer take if an employee agrees to take a business trip to an area where cases of coronavirus are reported? According to the National Labour Inspectorate (PIP), in such a situation the employer “should assess the risks associated with such a trip and provide the employee with appropriate measures to reduce the risks associated with the possibility of being infected with the pathogen, and take steps to minimise the potential risk, e.g. organise the trip so that the time spent in the area of danger is as short as possible“.

The situation is different for employees spending their holiday leaves in the countries where there is a risk of SARS-CoV-2 infection. The PIP’s opinion on this is unambiguous. An employee is not obliged to inform employer about the place where he spends his leave, and employer cannot collect such data. Thus, the employer cannot prevent employee from returning from the leave to work, assess employee`s health condition on his/her own or refuse the employee the right to holiday leave due to his/her stay in the region where cases of infection are reported.

Coronavirus – national competent authorities` recommendations

IMPORTANT! You should call a sanitary-epidemiological station or report directly to an infectious disease ward in hospital or an observation unit if you have been in northern Italy, China, South Korea, Iran, Japan, Thailand, Vietnam, Singapore or Taiwan in the last 14 days and have observed symptoms such as fever, coughing, shortness of breath and breathing difficulties.

Ministry of Health and Chief Sanitary Inspectorate recommendations for preventing the spread of the virus:

• Wash hands frequently and thoroughly with soap and water for at least 30 seconds,
• Cover the nose and mouth during coughing (it is recommended to wear a mask only in case of respiratory problems),
• Keep one meter away from the person showing symptoms of the disease,
• Avoid touching your nose, eyes and mouth,
• Consult a doctor if you have a respiratory problem.

Learn more: European Labour Authority starts its activities

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