For more than a month, employees have to undergo testing for work performances at the workplace, but contentious questions keep arising in connection with the testing scheme. In this article, we want to take a closer look at some of them.
The obligation to procure employee testing rests primarily with the employer. As an alternative to self-testing at the workplace, the employer may make arrangements with a provider of occupational healthcare or another healthcare facility engaged in testing, and send employees there for testing. In such case, the tests will be covered by general health insurance. However, employees cannot be required to find a relevant testing center on their own. Conversely, if the employee refuses to undergo testing on the company premises but of their own accord delivers confirmation that they underwent testing, the employer should accommodate such practice.
If the test is administered away from the workplace, the question arises whether the time spent on the testing procedure counts against the employee’s working hours or not. The prevailing interpretation is that the mandatory testing scheme represents an obstacle to work on the part of the employer, and the employee should thus be entitled to substitute pay in the amount of their average earnings within the meaning of Sec. 103 (1) (e) of the Labor Code and sub-section 2 of the annex to Government Decree No. 590/2006 Coll. (as an examination related to work performance in such scope as set out by special law).
Rather surprisingly, the views diverge as to what consequences the employee’s refusal to undergo testing should have. According to the Ministry of Labor and Social Affairs, this constitutes an obstacle to work on the part of the employee, who is not entitled to compensation for the foregone wages in this case. We believe, however, that here we are looking at a breach of work-related duties on the part of the employee, which gives the employer the option to draw consequences, i.e., in particular, to formally remind the employee of their breach of work-related obligations and to terminate their employment upon repeat infractions.
If the result of an employee’s self-administered antigen test at the workplace is positive, the employee must promptly notify the employer and their GP (or, depending on the employer’s instruction, the designated company doctor) and leave the workplace. In this respect, we need to draw attention to the Ministry’s official opinion, according to which the time span between a positive antigen test and the follow-up PCR test is again an obstacle to work on the part of the employee, of the kind which entitles the employee to substitute pay in the amount of their average earnings. We fail to see how this conclusion automatically follows from the law as it currently stands. In the light of the current situation, it is unrealistic to expect the workplace testing scheme to fold any time soon. To the contrary, it is quite possible that a consensus will form with respect to some issues only for new uncertainties to arise elsewhere.
3rd September 2021
26th August 2021