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Contact: Jelena Đukanović
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The number of people infected with COVID-19 in the Republic of Serbia is dropping every day, which resulted in the gradual return of employees back to the employer’s premises. Given the prevailing attitude that the vaccination influenced the significantly better epidemic position in Serbia, there are more and more dilemmas regarding those employees who have not yet been vaccinated and are returning to their positions (in larger or smaller) teams. In the following text, we have selected several frequent questions of employers, and answers to them, to solve some of the most common doubts of employers regarding their rights when it comes to employee vaccination in Serbia.
Although at first glance, the topic of vaccination seems to be a matter of “individual” importance that relates only to the individual who does (not) think about getting the vaccine, this topic is gaining traction from the collective aspect as well. This is supported by the fact that the number of questions increases day by day, regarding the rights of employers to influence the decision of employees on whether to get vaccinated or not, i.e., whether they will get tested for coronavirus, and notify their employer of the results.
Specifically, several questions came up as the most common.
The employer’s natural tendency is to take all preventive measures to minimize the risk of the infection entering and spreading throughout the company. Still, the boundary between justified prevention and forbidden “encouragement” is quite thin, so employers should be particularly careful when it comes to the stimulation of employees regarding vaccination.
In practice, the most “innocent” and the most acceptable type of stimulation would be to transparently allow employees to take a day off work when going to get vaccinated.
Many companies have decided to take a step further and encourage, i.e., reward those individuals who decide to get the vaccine, by financial or other means of employee rewards.
Employers are not prohibited to act this way but are praised by a large part of the public, as this is considered a positive influence of companies on raising awareness of the necessity of herd immunity. The Serbian Ministry of Labour, Employment, Veteran and Social Policy (hereinafter: the Ministry), issued an official opinion on June 2, 2021, on whether cash incentives for vaccinated employees are allowed. The Ministry pointed out that the Labor Law allows the employer to foresee the employee’s “other income” by the Employer’s General Act, i.e., by the Employment Agreement, where such a bonus could be classified. During the implementation of these stimulations, one still must be careful, so that the employer’s good intention does not get misinterpreted or even interpreted as discrimination against employees who do not wish to get vaccinated.
The employer may raise employees’ awareness of the benefits of vaccination by their own actions, as well as openly show support to the competent authorities regarding vaccination. So, there are no obstacles for you to directly share your position on vaccination with your employees, as well as to use that chance to get to know their position.
Besides informal chit-chats with employees, by introducing acts issued by the competent authorities upon lifting the state of emergency, employers are allowed to take specific measures regarding prevention at the workplace. Since the acts are mostly adopted in the form of recommendations, they are not binding, so the employers decide whether they will implement those recommendations and to what extent.
For example, if the conditions for the recommended distance between individuals are not met in the business premises, you can oblige your employees to wear masks to reduce the possibility of transmitting the infection to a minimum.
Also, if vaccination is discussed openly within your company, and you are aware of the fact that most of the employees are vaccinated, it would be justified to ask the people who have not received the vaccine to wear masks, in addition to the preventive measures of hygiene at the workplace. Since they have not received the vaccine, there is a higher risk of spreading the infection.
The mandatory prevention measures differ and depending on the place of your company’s registered seat, for example, since the state of emergency has been lifted in Novi Sad, there is no longer an obligation to wear masks in private, closed spaces (such as the employer’s premises), while the obligation to mask mandate which was enforced in Belgrade has now been reduced to the level of a recommendation. Although the situation is similar in most cities, whether the employees are obliged to wear masks at the workplace, or whether the employer has the possibility to determine the obligation for the employees on their own still depends on the city you are situated in.
From the aspect of the Law on Personal Data Protection, data about whether the employee has gotten the vaccine represents health-related information, so it is classified as highly sensitive data, to which special rules of processing apply. Considering the specific nature of those data, the employer must fulfill the conditions foreseen by the law, to justify the reasons for the collection and processing of data, by which those conditions are stricter in comparison to the processing of personal data which does not fall under this category.
Still, there are certain grounds that the Law on Personal Data Protection prescribes, which could be applied to the data on vaccination – for example, the employer, under the law, has the right to process health data to achieve a significant public interest determined by the law, if that kind of processing is proportionate to achieving that aim. In that situation, the employer also has to secure the implementation of appropriate and special measures of protecting the employees’ rights, by also adhering to the basic principles of the Law on Personal Data Protection.
In this case, “a significant public interest” might be considered interest for preserving and improving the health of the citizens, which is foreseen by the Law on Public Health, i.e., the interest for the protection of the citizens from infectious diseases is regulated by the Law on Protection of Citizens from Infectious Diseases.
The same rules apply when it comes to the COVID-19 test results – by referencing the appropriate legal basis foreseen by the personal data protection regulations, the employer would have the right to process data regarding the tests of employees and to keep a record of it. However, individual employees are not obliged to, self initiatively, notify the employer of whether they have gotten tested.
There is an exception in the case when the result of the COVID test shows that the employee is infected. Namely, the Rulebook on Preventive Measures for Safe and Healthy Work, for hindering the occurrence and spread of the epidemic of infectious diseases, which was adopted in July 2020 (hereinafter: Rulebook) foresees that, among other things, the employee’s obligation is:
An unambiguous conclusion can be made that in case the employee finds out that they are positive for COVID-19, they could, without delay, notify the employer, so that all necessary measures for prevention of the further spread of the virus can be taken.
We are also reminding that all the employers must adopt the Plan of the implementation of the measures for hindering the occurrence and spread of the epidemic of infectious diseases, which we covered in our blog Attention, employers! Protective measures for health and safety work amidst COVID-19 are here.
Although the legal basis of processing vaccination data, i.e., data on employees’ tests can be found in the law, obliging employees to get tested for COVID-19 is still not justified, and there is no legal basis for such an employer’s request. The only case when referring an employee for any type of testing related to health is allowed is if it is necessary to fulfill the conditions for work at a particular position. Still, this is not the case when it comes to testing for COVID.
Since the Rulebook prescribes that employees are obliged to “cooperate with the employer to implement additional, necessary measures for healthy and safe work”, which, if interpreted more broadly, could lead to the conclusion that the employer is authorized to send such employees to some kind of a medical examination in case they believe that the employee might be infected.
Whether the (future) employee is or is not vaccinated cannot be taken as a criterion for deciding on their rights and obligations which they have by the employment regulations. Thus, if during the process of interviewing a certain candidate, you openly pose the question “Are you vaccinated?”, your precaution could easily be interpreted as discrimination which can have negative consequences for the employer.
The same applies to questions regarding COVID tests. So, during the process of choosing new employees, it is necessary to limit your questions to those which are allowed by relevant acts, and which relate to the working relationship directly.
The said rule applies to firing current employees as well – if one is infected by the virus, or refuses to get vaccinated or tested, the employer cannot use this as a reason to fire those employees.
The fact that the employee is not vaccinated cannot be a sufficient reason to limit or prohibit their access to the employer’s premises. By that, it cannot represent a basis to, for example, order unvaccinated employees to work from home while allowing vaccinated employees to work in the office. As the aforementioned Ministry’s opinion states, work from home is a possibility foreseen by the Labor Law, which applies in those cases when it is fitting for both parties, and when that type of work is possible. Therefore, working from home is an option that depends on the agreement between the employer and the employee. The Ministry did not offer an opinion on this topic from the aspect of the COVID-19 pandemic, but they pointed to the Serbian Ministry of Health and the Serbian Department for Safe and Health at Work for any additional information. However, in case the employer has a justified reason to suspect that the employer is infected, by the Rulebook and according to their legal duty to take all necessary preventive measures to hinder the spread of the infection, they could refer the employee to work from home, i.e., the employer could suggest they consult a doctor.
On the other hand, whether an employee is vaccinated or not, cannot be the deciding factor for assigning different work tasks within the company. So, the interior organization of work can only depend on the already prescribed conditions foreseen by properly drafted internal acts of the employer, and not on health factors on which the employee has the right to decide independently.
If we were to make a comparison, the situation is almost identical in most European countries, the only difference being that the regulation on certain matters is more precise in comparison to Serbian regulations .
The COVID-19 pandemic has certainly influenced the regulatory regime of work relations and contributed to many changes to the already established rules and procedures. Still, when it comes to the right of employees to privacy, the limits for employers are set. The public’s opinion regarding vaccination differs greatly, which is projecting onto the relation employer-employee, by which, a quite broad right of employees to choose when it comes to vaccination against COVID-19 is determined consequentially.
Despite the spread of the scope of employer’s authorizations which relate to the implementation of the measures for hindering the occurrence and spread of the infectious disease at the workplace, the boundaries between prevention and excessive encroachment into employees’ rights are thin, and often unclear. Thus, before asking your employees “Which vaccine are you getting?“, think again.