Amidst the Covid-19 pandemic employers are facing a range of issues related to the obligation to protect the health of their staff by ensuring a safe and healthy work environment.
The roll-out of Covid-19 vaccines in Poland (and other European Union member states) was supposed to enable employers, at least partially, to meet their occupational health and safety obligations. Meanwhile, vaccination regulations in force leave employers with more doubts instead of clarifying the issues that are relevant for work organisation during the pandemic.
Covid-19 vaccination is voluntary, which means that employers may not require their workers to undergo inoculations. Neither may employers take any measures against employees if they refuse to be vaccinated or disclose information about vaccination. Employers, however, may encourage inoculations by offering various benefits, but such incentives should be introduced with care to avoid discrimination allegations made by employees.
It is beyond doubt that information on Covid-19 vaccination is health-related information and, consequently, is special category data in the meaning of the personal data protection provisions (GDPR). In line with the Polish Labour Code, the employer may process such personal data of an employee (including a job applicant) only if such data is provided at their initiative. In our view, the provisions currently in force do not authorize employers to process special category data for the purposes of preventive healthcare or occupational medicine, including the assessment of employees’ fitness for work; nor do they offer grounds for the processing of such data for reasons of public interest in the field of health. It means that employers may not require workers to disclose their vaccination status, and in particular may not ask for confirmation of Covid-19 inoculation. The lack of vaccination information may not be grounds for asking an employee to work remotely despite the fact that such work may be requested by the employer without giving any reason.
Importantly, employers’ obligations set out in the provisions on restrictions, orders and prohibitions related to the occurrence of an epidemic, including the obligation to provide protection measures and ensure a 1.5 m distance between workplaces, are independent of whether or not an employee is vaccinated.
Information on employee vaccination may be obtained and processed by employers only on the initiative of employees. Employers may not put in place any internal policies or by-laws that could contain an expectation that workers disclose their vaccination information.
The Polish government has announced plans to enact regulations enabling employers to verify employees’ vaccination status, including those authorizing employers to apply sanctions to workers who have not been vaccinated against Covid-19 or who are unwilling to disclose their vaccination status. At the moment, no detailed information on such regulations is available.