Mandatory masks at work for the unvaccinated

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Vaccination against COVID-19 in many workplaces is controversial. Unvaccinated workers often report that they feel discriminated against because of this. Are the mandatory masks at work for the unvaccinated a symptom of discrimination? We explain the details in this article!

Employer as a motivator for vaccinations

When vaccination began in Poland, it was clearly emphasized that it was optional. Therefore, no one can - in the current state of the law - force to vaccinate, especially the employer. Of course, the employer may motivate its employees to vaccinate, e.g. by organizing vaccination points at workplaces or by granting employees additional days off for vaccination. However, the incentive and motivation should not be material or financial.

The employer can neither punish nor reward for the vaccination, because such actions are discriminatory, and in extreme cases the employee may sue his employer to court.

Although the National Labor Inspectorate has not taken an official position on this issue, it is undeniable that an employee at the workplace may not be discriminated against in any way. This view is clearly confirmed by the Labor Code, and more specifically by Art. 18 (3a) § 1, where you can read: Employees should be treated equally in terms of entering into and terminating employment, terms of employment, promotion and access to training in order to improve professional qualifications, in particular regardless of sex, age, disability, race , religion, nationality, political beliefs, trade union membership, ethnic origin, religion, sexual orientation, fixed-term or indefinite employment, full-time or part-time employment.

The employer should guard the health and safety in the company

The employer is obliged to provide his employees with safe working conditions.This also applies to the situation during an epidemic. During this period, employers have a particularly important task, which is to comply with all legal regulations regarding the coronavirus epidemic. At the moment, the regulation of the Council of Ministers of June 11, 2021 is in force, which provides that until August 31, 2021, there is an order to wear masks in workplaces if there is more than one person in the room.

The decision to put on the mask at work rests with the supervisor.

Mandatory masks at work for the unvaccinated

At the moment, the regulations do not in any way separate the vaccinated from the unvaccinated. With regard to the above provision, the employer may, however, regulate the issue of wearing masks individually, e.g. completely abolish the order to use them in their workplace. As previously mentioned, the employer is not allowed to obtain information from his employees about whether they are vaccinated or not. However, he may obtain such knowledge if the employee presents it voluntarily. Going further, it will not be discriminatory if an employer introduces an order to wear masks for all unvaccinated people. If the employee does not want to inform the employer that he has been vaccinated, he has the right to do so and will then have to wear a mask at the workplace. If the employer is accused of discrimination in this respect, he will have very solid arguments. It should be remembered that the basic obligation of the employer is to ensure appropriate working conditions, so if the employer regulates the mask regulation individually, but does not pressurize employees and does not force them to be informed about vaccination, then, as a rule, he performs his duties correctly.

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Can the employer punish for the lack of a mask?

Assuming that in a given workplace the employer introduced the requirement to wear masks and regulated this provision in the work regulations, the employee should, as a rule, wear a mask at work. However, in a situation where he does not do it, and the situation is repetitive, the employer may impose a penalty on the employee. It results directly from Art. 100 § 2 points 2 and 3, where you can read that the employee is obliged to follow the instructions of his superiors that relate to work, if they do not conflict with the law or the employment contract, and above all comply with the work regulations and established in the workplace order and comply with the provisions and rules of health and safety at work, as well as fire regulations. If the employee does not agree with the employer's decision, he may appeal against it in the labor court.

New regulations - revolution is preparing?

Although a vaccine for the coronavirus already exists and can be administered, it is not in high demand. It is still voluntary, but newer and newer bills are being developed to motivate as many employees as possible to get vaccinated. Although these are only plans and there are no legal regulations in this area yet, a draft act was published to amend the act on special solutions related to the prevention, prevention and combating of COVID-19, other infectious diseases and the crisis situations caused by them, and some other acts (UD271) . It includes the following assumptions:

  • in the case of a person who provided information about not being vaccinated against COVID-19 or not having passed the SARS-CoV-2 virus infection confirmed by the result of the SARS-CoV-2 diagnostic test or having a valid positive diagnostic test result for SARS-CoV-2, the employer may delegate this person to work outside his / her permanent place of work or to a different type of work, with remuneration corresponding to the type of work, or send him on unpaid leave;
  • it is also possible to expect the above information before entering into an employment relationship with the applicant;
  • it is expected that the employer will be able to verify whether the employee has been vaccinated - a special application provided by the e-Health Center will be used for this.

Therefore, employers may soon receive a powerful tool thanks to which they will be able to obtain data on vaccinations and use it properly, primarily to protect their interests. Whether these regulations will affect vaccination coverage will be clear after their entry into force.

Summary

At the moment, it seems that the mandatory masks at work for the unvaccinated, if the employer implements the order in an appropriate manner and with respect for the rights of the employee, are not a symptom of discrimination. Soon, however, the provisions regarding the rights of the employer in the context of the coronavirus epidemic may change significantly, and the employer himself may obtain a powerful tool that will be able to significantly influence the situation of people who are not vaccinated in his workplace.