The Covid-19 pandemic has thrust employers into a frightfully complicated situation. The number of infected individuals has been steadily on the rise, and the extraordinary measures implemented by the executive are fast-paced and ever-changing. A clear legal framework for the protection of health at workplaces is missing. All these things form the backdrop of most employers’ “new normal”. This article provides an overview of selected legal institutions which may help alleviate employers’ burden associated with the organization of work under the current circumstances.
Right from the outset, we ought to stress that the responsibility for a safe work environment and safe working conditions that are not harmful to health lies exclusively with the employer. The employer must live up to this responsibility by taking suitable measures in the area of work safety and occupational health (OSH) within the meaning of Sec. 102 (1) of the Labor Code. Granted, that section of the law offers little guidance when it comes to the concrete shape which the corresponding organizational measures should take. Sec. 102 (2) of the Labor Code says that the employer should take measures which serve the prevention and avoidance of risks, and the minimization of the consequences of those risks which cannot be averted. Again, this provides no unambiguous answer to the question how employers should proceed in real life.
Given the current pandemic, employers are faced with additional, requirements beyond those set out in the Labor Code and related legislation: the government has been passing a variety of extraordinary measures which impose certain obligations on employers that do not follow strictly from the law. For instance, employers must ensure that workers in each shift are equipped with sufficient amounts of protective gear for their airways (i.e., face masks) (with the exception of those who are working from home and are not physically present at the workplace). Employees are obliged to wear masks whenever they move about premises inside buildings if two or more individuals may come into contact and are unable to keep a safety distance of at least 1.5 meters at all time. The employer must see to it that this obligation is being fulfilled, and must moreover provide sufficient means in the workplace for increased hand hygiene and proper disinfection.
In addition, employers must constantly assess the working conditions in each workplace operated by them. Given the rising incidence of Covid-19 infections, employers are again required to arrange for regular testing among staff, based on extraordinary measure No. 1036 of the ministry of health of 19 November 2021, which is mandatory for all employers on the territory of the Czech Republic. According to this measure, employers must regularly (i.e., once every week) test their staff for Covid-19, using rapid antigen self-test kits or rapid antigen tests administered by a medical service provider. The duty to submit to testing extends to unvaccinated staff. Employees who are vaccinated or who have recovered from Covid-19 are exempt, and so is everyone who can produce a negative PCR test (or a negative antigen test that was administered by a healthcare facility). If an employee refuses to submit to the test, then the employer must promptly notify the locally competent public hygiene authorities, and the employee in question must wear a face mask at the workplace at all times, keep a safety distance of at least 1.5 m to others, and take their meals separate from the rest of staff. The employer must take organizational measures to minimize encounters between such employee and other persons.
As we have seen, employers are not obliged to test vaccinated employees. Nonetheless, based on an internal assessment of the working conditions and of the specific risk factors in connection with Sec. 102 (3) of the Labor Code, employers made conclude that a preventative testing regime also for vaccinated employees is called for, in order to prevent the propagation of Covid-19 in the workplace. This view is shared by the ministry of work and social affairs: employers are being encouraged to perform an assessment of the risk of infection at their various operating premises, taking into account the current situation at the workplace or within the region in which the company (or the workplace) is located, and, based on the results of such assessment, may choose the testing regime best suited to their situation. They may also take additional measures to mitigate the risk of propagation of Covid-19 or, in fact, choose to implement no measures at all if they arrive at the conclusion that the risk at their particular operating premises is negligible.
As a part of its internal OSH policies and work rules, the employer may impose mandatory testing at the workplace. Employees must respect such policies and rules with a view to, in particular, Sec. 301 (c) of the Labor Code. At this point, we need to note that the employer must familiarize staff with all internal policies and rules in an adequate form. In the words of Sec. 106 (4) (c) of the Labor Code: employees shall abide by the legal regulations and by additional rules and instructions of the employer on occupational safety and health, provided that they have been properly familiarized with them, and follow the principles for safe behavior at the work place and the information provided by the employer from time to time. With this in mind, our recommendation is to draft and formally adopt an easy-to-follow, factual internal policy on the methods in place for combating Covid-19, and to then communicate the contents of such policy to all staff members through a suitable channel.
We should mention that the responsibility for all the above is always with the employer, who moreover must bear all of the expenses associated with OSH at the workplace. Such costs must not be passed on to employees, whether directly or indirectly, as this would be a violation of Sec. 101 (6) of the Labor Code. In other words: the costs associated with testing or other internal company measures related to Covid-19 always affect the employer, and never the employee. Having said that, the state ought to subsidize the testing, if mandatory testing was imposed by way of an extraordinary measure.
Ministry of Labor and Social Affairs
Extraordinary measure No. 948 of the Health Ministry of 25 October 2021
Extraordinary measure No. 917 of the Health Ministry of 20 October 2021
Extraordinary measure No. 1036 of 19 November 2021