Q&A: Employer's obligations when testing employees

We have been undergoing mandatory regular antigen testing in companies for several weeks now. Yet there are still areas where the approach is not entirely clear. We have compiled answers to the most common questions.

1. Does the employer have to provide the tests in-house or can it send the employees to a testing centre?

The following can be used for testing:

The POC network of antigen collection centres, where testing is fully covered by health insurance.

A secondary provider network consisting of contracted and non-contracted health care providers who are interested in participating in widespread testing of individuals, are linked to electronic ISIN tools and comply with all mandatory and uniform reporting requirements, and arrange for testing through a POC antigen test by a health care professional. These may be on-site or off-site occupational health providers, non-contract health providers who must apply to health insurance companies for a facility identification number and site identification number, or providers who do not perform occupational health services for the employer. These must meet other criteria in addition to the authorisation from the regional authority. If the criteria are met, the examination is also fully covered by health insurance.

Self-testing with antigen tests at the employer's premises. The basic obligations of the employer in such a case include purchasing tests from a distributor with an exemption from the Ministry of Health, allowing testing, setting aside a suitable place in the workplace, selecting authorised employees, keeping records (overview) of the tests carried out and safe handling of the tests used. The contribution from the health insurance company is CZK 60 per test, up to a total of CZK 240 per employee per month.

2. Does the time required for testing count as working time?

In our opinion, taking the test is not work performance and does not count as working time. Working time under the Labour Code means the time during which the employee is required to perform work for the employer and the time during which the employee is at the workplace ready to perform work as instructed by the employer. However, the obligation to test should not be borne by the employee and testing should take place within working hours. In such a case, we believe it should be another important impediment to work on the part of the employee falling under the so-called paid impediments. If the testing is carried out outside working hours, the law does not attach any additional entitlements to it in respect of time worked or wage compensation.

3. Is it possible to give the tests to employees to take at home before they arrive at the workplace?

The employer has multiple options for testing. If it chooses to self-test, the Department of Health's emergency measure implies that it should test employees in the workplace. Off-site testing is expressly permitted by the measure if the employee has worked off-site for the past seven days. This may include sales representatives making rounds to customers or employees on business trips. However, the emergency measure does not explicitly contemplate the possibility that employees should routinely test themselves at home before coming to work.

However, some employers have in practice implemented routine testing at home. The argument for this practice is most likely based on the fact that the employee will test himself at home and, if positive, will not go to work and thus not endanger colleagues or fellow commuters. On the other hand, there is a risk that if antigen tests are routinely performed at home, they may not be administered correctly (thoroughly enough), which may lead to more false negatives without the employees being aware of it. At the same time, it must be stressed that it is the employer, not the employee, who is primarily responsible for occupational health and safety, as well as for the correct procedure for the performance and subsequent handling of the test.

4. How to proceed if an employee refuses testing?

If an employee refuses to be tested, he or she may not be allowed into the workplace by the employer. The consequences for employees vary among professions. The interpretation advocated by the Ministry of Labour and Social Affairs favours an unpaid obstruction of work on the part of the employee, among other things because the testing interferes with the employee's physical integrity. At the same time, however, it draws attention to the fact that if an employee refuses testing, they commit an offence under the Pandemic Act, for which they could be fined up to CZK 50,000.

However, we find a contradiction in the interpretation of the Ministry of Labour and Social Affairs. On the one hand, according to the Ministry, an obligation with which the employee was familiarised is being violated, for which in other cases the employer would face legal consequences under the Labour Code. On the other hand, according to the Ministry, such a breach is to be treated by the employer as an excused absence. It should be noted that the Ministry's interpretation is not binding, and if an employer proceeds to terminate an employee on these grounds, it will be for the court to decide whether it was justified. In any event, caution and consideration of all relevant circumstances is advised when contemplating such steps. It is unlikely, for example, that an employee who frequently has nosebleeds would be terminated for refusing to undergo a nasal swab test.

5. How to report on employee testing in compliance with the GDPR?

When collecting personal data, the employer is in the position of a data controller within the meaning of the GDPR. Special categories of personal data containing information about the health status of the employee are also processed for reasons of important public interest in the field of public health protection. Therefore, records on the performance of tests can only be used in the direct context of performing obligations imposed by an emergency measure of the Ministry of Health.

The test records themselves may only contain the employee's basic identifying information (first name, surname, insurance number), the employee's health insurance company, the time of the test, and the result of the test, as stated by the Office for Personal Data Protection. The same applies if the employee falls into a category that is exempt from testing, e.g. if they have contracted Covid-19 in the previous three months and show no symptoms. In this case, only the employee's identifying information and the reason for granting the exemption are recorded.

At the same time, care must be taken to ensure that the physical or software security of personal data is such that only authorised persons have access to the data. Employees should also be informed about the type and nature of the tests, the processing of personal data for the purpose of testing, the legal basis for the processing, the possible transfer of the data to public health authorities as recipients and the period of storage of the data.

 

Lukáš Regec, Adam Hussein

lukas.regec@bdolegal.cz, adam.hussein@bdolegal.cz