New Ordinance on compliance with the Recovered-Vaccinated-Tested rules
In response to the new wave of COVID-19 infections, new measures were adopted with the aim of verifying compliance with the Recovered-Vaccinated-Tested (RVT) rules. Those measures present new challenges for employers. As a result, the new Ordinance on the method of meeting the condition of morbidity, vaccination and testing to curb the spread of SARS-CoV-2 virus infections entered into force today and applies to nearly all employees and users of services. This brief article explains how employers should act when verifying compliance with the RVT conditions.
In connection with the measure laying down the obligation to ensure compliance with the RVT conditions, the new Ordinance on compliance with the RVT conditions defines an employer’s obligation to verify such compliance. To that end, an employer may collect statements from employees on whether they comply with one of the RVT conditions. If an employee fails to comply with one of the RVT conditions, the employer may subject the employee to testing (rapid antigen test (RAT) for self-testing, or an RAT or PCR test).
1. How are employers expected to ensure compliance with the RVT conditions?
The new Ordinance demands that employers shall organise verification of compliance with one of the RVT conditions and keep records of the evidence stated in Article 2 of the Ordinance (certificate of vaccination, confirmation of test results, etc.), which means that employers have different possibilities at their disposal for organising verification of compliance with one of the RVT conditions. However, the collection of employee data is limited in accordance with laws governing personal data protection. The Information Commissioner, who frequently receives reports and questions from individuals regarding the legality of the processing of health-related data, has already confirmed that an employer may collect such data, provided that they have the lawful and appropriate legal basis, i.e. if sectoral regulations require this of an employer. In such cases, an employer should only process the minimum amount of data, i.e. those data that are appropriate and relevant for such purposes. This means that employers are very limited in terms of storing data. Under the new Ordinance, employers have at their disposal two methods for collecting data for the purpose of verifying compliance with one of the RVT conditions:
1. Employee provides a statement that they comply with the RVT conditions
For the purpose of verifying compliance with the RVT conditions, an employer may collect statements from their employees that they comply with the relevant RVT conditions and the date until which that compliance is valid. A person authorised by an employer reviews an employee’s statement and verifies its veracity by checking confirmation of compliance with one of the RVT conditions. Here it should be noted that we are of the opinion that an employer has no basis for collecting confirmation of compliance with the RVT conditions, nor the basis for keeping records as to whether those who comply with the RVT conditions are vaccinated recovered or tested. A person authorised by an employer may make an official note regarding the review of confirmation and the existence of a statement, which may be stored until the submission of a new statement or for as long it is still required to prove the fulfilment of their obligation in accordance with the Ordinance. After that time, such official notes shall be destroyed by record. The latter is important as evidence in inspection procedures.
2. Employer organises self-testing using rapid tests (RAT for self-testing)
In such cases, the Ordinance envisages the preparation of a record sheet by an employer and the submission of that record sheet to an employee. The employee shall complete the record sheet with data regarding the date of self-testing, test results and their signature. The Ordinance does not envisage the submission of test results to an employer by an employee for review. Rather the submission of a correctly completed record sheet is sufficient. A person authorised by an employer then stores that record sheet until the submission of a new record sheet. The Ordinance states that self-testing must be carried out weekly at the same intervals. An old record sheet shall be destroyed by record when a new one is submitted. The latter is also important as evidence in inspection procedures.
2. How should an employer react if an employee refuses to test?
An employer has the following options if an employee refuses to test or submit confirmation of compliance with the RVT conditions for review:
- treat the breach as a minor breach of obligations in the scope of disciplinary proceedings and impose disciplinary sanctions (prior to the imposition of disciplinary sanctions, an employee must be informed in writing about alleged breaches and be given the opportunity to respond, after which they may be sent a reminder or other disciplinary sanctions may be imposed); and
- initiate proceedings for the ordinary termination of an employment contract for reasons of culpability (with respect to termination, attention must be given to the proceedings and deadlines for the lawful ordinary termination for reasons of culpability).
Evaluation of the severity of a breach depends in part on the values, interests and specific circumstances in connection with an employer, which we recommend be governed by internal rules on disciplinary and termination proceedings. When sanctioning breaches, it is important that all employees refusing to comply with the RVT conditions be treated equally. It is also important that each refusal to submit a statement regarding compliance with the RVT conditions be accompanied by a prohibition on the performance of work, and that testing be made possible the next day in the workplace and a warning issued regarding the further consequences of failure to fulfil obligations.
3. What steps should an employer take when sending employees to visit business partners?
Whenever an employer sends an employee to visit a business partner, that employee shall comply with the RVT conditions for the performance of their work. It should be noted that self-testing (RAT for self-testing) is insufficient. It should also be noted that an employer may not issue a statement that such employees comply with the RVT conditions. Employees who visit business partners and who do not have a certificate of vaccination or appropriate confirmation of recovery must therefore take a rapid test or PCR test.
A similar situation arises if an employee becomes the user of services for the purpose of performing their work. Such situations arise, for example, if an employee must refuel their own car or a company car for the purpose of performing their work. In such situations, employees must comply with RVT conditions, where self-testing (RAT for self-testing) is insufficient. Instead, employees must submit to a regular rapid test or PCR test.