We would like to comment the discussed newsletter about mandatory testing, which was distributed by the employer to the employees and which has been dealing with a lot lately. You often ask us if the employer is entitled to everything he writes in the newsletter and also if it is mandatory to test at the workplace and what are the consequences of a possible rejection of the test. The OÚP has discussed these matters with its attorney and provides you with the following summary.
First of all, we want to defend ourselves against the fact, that the employer sent a newsletter to all employees without discussions with labour unions, including the OÚP. It is the employer’s duty to discuss with the labour union all measures concerning a larger number of employees.This obligation follows directly from the provisions of § 287 para. g) of the Labour Code. It does not change the fact that the employer ensures the fulfillment of the obligation imposed on him by an extraordinary measure of the Ministry of Health. We will therefore ask the management not to repeat this procedure and that all similar measures have been discussed in time with the OÚP and other labour unions.
We have been assured by the employer that there is a consensus on discussing the measures with the unionsin advance, however, due to the turbulent changes, this is not always possible. The OÚP adds that it considers it a better option to discuss some issues more operatively than to avoid discussing rapid changes.
About testing obligation – we would like to ask you for tolerance towards management. The reason for introducing the tests was not the decision of the employer or someone from the group, but the obligation given by an extraordinary measure of the Ministry of Health. Whether we like it or not, employer must perform testing.
We therefore recommend that all employees either prove that they have been vaccinated, that they have suffered COVID-19 or that they have their own test from a medical facility not older than 7 days; otherwise, let them be tested. We recommend that masters and leaders comply with the obligation to verify the certificates by which employees prove that they have passed a test, vaccinations or suffered an illness.
In general, we also state that the employer’s newsletter is largely true and describes the text of an extraordinary measure of the Ministry of Health. Nevertheless, there are some things that, in our opinion, the employer does not explain exactly in the newsletter.
- Obligation to share information about vaccinations or illnesses
The employer states in the newsletter that it is the duty of employees to state whether they have been vaccinated or have suffered an illness. At the request of one of our colleagues, he explained that the emergency measure brake the right to protection of personal data on health, and therefore all employees are obliged to communicate this information to the employer.
We do not agree with this opinion. The emergency measure imposes an obligation to communicate and prove this information only if employees want to avoid the test. The general obligation to communicate this information does not follow from the emergency measure. It is therefore up to each employee whether he / she wants to voluntarily report vaccination data / illness / self-test from the medical facility and avoid the test or not and will be tested.
- Obstacle to work in case of test rejection
We can not fully agree with the conclusion, that refusing testing means, that there is an obstacle on the part of the employee without compensation. The measure states what should happen if the test is rejected.
The employee must:
– wear a respirator;
– keep a distance of at least 1.5 meters from other persons;
– eat separately from others.
The employer must:
– let regional public health authority know about this employee;
– provide for organizational arrangements to minimize the staff member’s encounters with other persons.
From the above, in our opinion, it follows that the rejection of the test does not constitute an obstacle to work on the part of the employee, because the emergency measure directly states how the workplace should proceed in such a case and what the employee and employer are obliged to do.
For the same reason, in our opinion, it is not possible for an employer to fire anyone due to he do not want to be tested. As the measure directly states how to proceed if the test is rejected, there can be no reason for termination. The threat of dismissal is not mentioned in the newsletter, but the employer indicated this in a statement to one of our colleagues.
However, we must point out that the employer’s different view is also based on the relevant basis, which is that the employer will take organizational measures by preventing the employee from entering the workplace. In this context, we point out that the High Court has long held the view that an obstacle on the part of the employer really occurs only in a situation where there is no obstacle on the part of the employee. At the same time, it is a question of how the High Court would interpret a situation in which an employee refuses to test, even though it is his duty under an extraordinary measure. We can not rule out the possibility that the courts will also support the opinion of the employer, because refuses to test by an employee may be seen as an obstacle to the performance of work on his part.
Thus, although our views on this issue differ from management, we fear that employees seeking compensation for not being admitted to the workplace may not be successful in court. That’s why we strongly recommend that you take the testing again here. It is an obligation set by a measure of the Ministry of Health and must be complied with. The situation does not please anyone and its further complication can unnecessarily worsen the mood in the workplace.
- Assessment of the time between the positive test at the workplace and the confirmation test, the consequence of the positive test
Regarding to assessing the time between when you are first tested positive for an antigenic test in the workplace and when you learn the result of a confirmatory PCR test, this time will always be considered an obstacle to work on the part of the employer, regardless of its length and result and employee will be entitled to a wage compensation of 100% of average earnings. This follows directly from the emergency measure.
The employer’s claim that the first day is an apology to the doctor and others will be „sick note“ if the test is positive was not entirely accurate and may have raised concerns as to whether full pay will be provided to employees. However, we were assured by the employer that in the majority of cases, the delay between performing the PCR test and finding the result will be only one day, and this day will be an obstacle on the part of the employer. We were all assured that if the wait for the result for any other reason took longer, the obstacles on the part of the employer would continue.
The employer states the obligation to return to the test room after undergoing an antigen test. This description is brief and the next step was not entirely clear. However, it was clarified by the employer that the PCR tests will take place in the test room in case the antigen test is positive. This should speed up the process – it will not be necessary to see a doctor for a test request. The result of the PCR test will be received by the employee by e-mail or SMS, and the employee will discuss the next procedure with his practitioner. We thank the employer for this – it was not his duty and he really does something extra for the employees.
- Conditions to avoid testing
The employer further states, for example:
– that the employee can avoid testing for 180 days after the illness, in fact it is 180 days after the first positive test;
– that testing can be avoided by the employee after the vaccination has been completed, it must be stated here that this is two weeks after the vaccination has been completed.
Thank you for your understanding and the support and cooperation you have provided. Should you run into any testing issues or have any questions, we are at your disposal to resolve the situation. We hope that we will be able to cope with this difficult period without big problems.
Independent labour union for maintenance and other workers
Petr Bíba, Chairman of the Board of Directors