During the upcoming weekend (from 31 October 2020 to 1 November 2020) the first round of voluntary nationwide COVID-19 testing will take place in Slovakia.
What should employers expect and consider? We have prepared an overview of the most frequently asked questions and recommendations.
- The employee is at work on Saturday. What should we do?
Direct employees who are working on Saturday to go for a test on Sunday. The employer is obliged to provide the employee with the necessary time off for testing if it cannot be performed outside the working hours. In this case, testing is also possible on Sundays, regardless of whether a particular municipality recommends taking the test at a specific time according to surname or place of residence.
- The employee is working all weekend. What should we do?
You must provide the employee with the necessary time off for testing (including travel). There are two potential legal bases for this: obstacles to work due to medical examination or treatment or obstacles due to carrying out the employee's civic duty. We prefer the first opinion.
This will apply if the employee does not actually have the opportunity to take the test in his/her spare time. As the testing takes place from 7:00 to 21:30, employees may be able to take a test before or after their work shift).
- Paid or unpaid leave?
In relation to the wage compensation, if the examination/treatment is used by the employee from the first seven calendar days per year, the wage compensation will be provided. If the employee has already used up the first seven days, s/he will be granted unpaid leave.
If you choose the option according to which participation in testing is the performance of civic duty, then unpaid leave will be granted.
On Monday, is the employer entitled to check whether an employee has been tested?
Yes. The entitlement is based on Health and Safety regulations.
According to the preliminary opinion of the Office for Personal Data Protection of the Slovak Republic, there is no legal basis (apart from the consent) for checking whether an employee has been tested in the current measures. The preliminary opinion does not take into account the importance of occupational health and safety, while the legal basis would only be created by the decree proposed by the Chief Hygienist (see below). In relation to the GDPR in this case, we also draw attention to the existence and possibility of using the EDPB (European Data Protection Board) guideline. It means to inform employees about the processing of their personal data and apply an exception to the processing, which is a significant public interest/fulfillment of a legal obligation. The issue raises legal uncertainty, but given the short time and the COVID-19 situation itself, we recommend taking a pragmatic approach in relation to these measures. The risk of a dispute cannot be ruled out. Arguments do exist (and there are many), but they do not guarantee success and could be questioned by the authorities.
On 30 October 2020 afternoon, the Chief Hygienist issued a decree resolving the questions of employers regarding the requirement of tests from Monday, 2 November 2020. Employers are entitled to request proof of testing from their employees. The reason is the fulfillment of health and safety regulations at work.
- The employee came to the workplace and has neither an RT-PCR nor a certificate from the ministry. What should we do?
Send him/her home and consider it an obstacle to work on the part of the employee, or agree, as we write in the answer below.
- What about working time? Are we obliged to pay a salary to an employee we have sent home?
From a practical point of view, we see the following possibilities of an agreement, namely:
- taking a vacation;
- taking compensatory leave (if the employee has overtime hours s/he can use);
- home office regime (for administrative positions or other positions, where work is possible from home, the employees may also request it, and the employer must provide it if there are no serious operational reasons to prevent it);
- use of paid leave with the obligation to work this time as soon as possible after a return.
If the employer or the employee is not interested in an agreement, then you can give him or her unpaid leave for the period of absence.
- We opted for unpaid leave. Do we have any other responsibilities?
Yes. Notify the Social Insurance Agency of the interruption of the employee's social insurance and at the same time deregister the employee from the Health Insurance Company. Don't forget to re-register them.
- Can we consider the absence to be unjustified?
We do not recommend it. Issues such as legitimate interests, good morals, the exercise of the employer's right to the detriment of the employee are just the tip of the iceberg. The risks outweigh the potential benefits.
- You mentioned GDPR. We do not record personal data in this matter. Why do we need to inform employees about their rights?
Transparency and good GDPR practice. Are you sure you are not processing personal data? If you are checking the tests, it automatically means that employees who work in a standard workplace are negative for COVID-19. Information and further assessment should be prepared for you by your responsible person (DPO).
- Do you have any precautionary advice for us?
Yes, see below:
- Invite employees to take tests and instruct them on all the consequences if they do not go for them;
- Identify the person or persons with contact details, whom the employees will inform whether they are in compulsory quarantine;
- Clearly inform employees that they have a duty to inform you without delay of an obstacle that prevents them from working;
- Divide people into teams, assign people who can replace each team member if needed;
- Use a home office option, if possible;
- Establish a crisis team within your workplace.