May my employer require immunization against Covid-19?
In the perspective of the annual epidemic, many people lost their jobs, and some employers had to cut jobs due to the need to maintain the sanitary regime or due to the economic crisis caused by the coronavirus. In this context, consideration should be given to whether an employer can require his employees to vaccinate or whether he can fire an employee who fails to show that he or she has been vaccinated.
In January 2021, an information campaign, as well as notifications and registrations on vaccination against COVID-19 began in Poland. Vaccinations are voluntary and free.This means that there is no compulsion to vaccinate, nevertheless vaccination offers some possibility of recovery, and it is also, in a way, a job protection mechanism.
The employer as the guardian of health and safety regulations
Pursuant to Art. 207 of the Labor Code, the employer is responsible for the health and safety at work in the workplace.
It should be emphasized that the employer is obliged to protect the health and life of employees by ensuring safe and hygienic working conditions with appropriate use of the achievements of science and technology. These provisions, although they impose a number of obligations on the employer, also allow for respecting certain behaviors of employees. Bearing in mind that the employer is obliged to provide employees with, inter alia, information about threats to health and life occurring in the workplace, at individual workplaces and during the work performed, including the rules of conduct in the event of an accident and other situations threatening the health and life of employees, as well as about protective and preventive measures taken to eliminate or reduce these risks, the role of the employer can certainly and should be focused on encouraging employees to vaccinate.
Also, the willingness to finance quick tests for Covid-19 will be a kind of response to the role of the employer as the guardian of health and safety regulations, although the regulations do not impose such an obligation on the employer.
However, it is worth noting that any actions of the employer should be moderate and tactful. It is not difficult to implement such procedures that could breach the law, lead to discrimination of employees or unequal trampling. It is about actions that would reward people who were harassed, and depreciate people who, for various reasons, did not decide to do so. Such actions could, instead of helping the employer and the working environment, only harm, and discriminated workers would have the right to claim compensation for unequal treatment in the workplace.
Confirmation of vaccination against COVID-19
According to the announcements made available on government websites, information about the completion of vaccination will be entered into the e-Vaccination e-Cards in the P1 system.
In addition, the so-called QR codes that can be downloaded from the Patient's Online Account. Lack of Internet connection, or the lack of a telephone model that would enable it, will not be an obstacle to prove that the patient was vaccinated. The patient will be able to take a confirmation printout from the vaccination center, the so-called passport of the vaccinated person confirming that they come to the vaccination center and have been given the vaccine.
The certificate will in principle be issued for the knowledge of the patient himself or when the patient's will is to prove himself by receiving the vaccine in order to exercise the rights of vaccinated persons. For now, there is no legal basis regarding special rights for the vaccinated, but it is increasingly emphasized that prohibitions and restrictions related to COVID-19 will not apply to the vaccinated.
Media reports indicate the lifting of the quarantine for vaccinated persons or the omission of such persons in the calculation of the permissible number of participants in assemblies.
The employer will not have the right to require the employee to present a certificate, e.g. when hiring or already during the employment relationship. There is no legal basis for this, as the Covid-19 vaccine is by definition voluntary, and the law does not oblige its adoption. Thus, it should be acknowledged that the employee's refusal to vaccinate cannot result in his / her liability in order or constitute a justified reason for terminating the employment contract.
SARS-CoV-2 virus as a biological agent and its effects
The SARS-CoV-2 virus is included in the list of harmful biological agents that it deals with, Regulation of the Minister of Health of April 22, 2005 on harmful biological agents for health in the work environment and health protection of workers professionally exposed to these factors.
The above circumstance requires the employer to use all available measures to eliminate exposure or reduce the level of such exposure, in order to protect employees against hazards caused by a harmful biological agent.
In the event of the occurrence or possibility of occurrence in the work environment of a harmful biological agent, which according to the SARS-Cov-2 virus list, there is an available vaccine, the provisions of the Act of September 6, 2001 on infectious diseases and infections (Journal of Laws No. 126, item 1384, as amended4).
The above implies the possibility of employers who are obliged to apply all available organizational and technical measures to protect the health of employees (medical personnel) against contracting the disease.
However, the employer has no power over the employee and cannot force him to vaccinate, the employee himself has the right to refuse to undergo such vaccinations.
Act of 6 September 2001 on infectious diseases and infections (Journal of Laws No. 126, item 1384, as amended4).
Regulation of the Minister of Health of 22 April 2005 on harmful biological factors for health in the work environment and protection of health of workers professionally exposed to these factors, Journal of Laws 2005.81.716.
Act of June 26, 1974, Labor Code, Journal of Laws 2020.1320, i.e.
National Vaccination Program against COVID-19, www.gov.pl.
Material prepared by the team of "Tak Prawnik".
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