On 19 November 2021, the Government approved an Emergency Measure of the Ministry of Healthcare reintroducing the obligations of employers and employees related to the mandatory periodic testing of employees for the presence of SARS-CoV-2 antigen.

Employers’ Obligations

According to the new emergency measure, from 29 November 2021 at the latest, employers must ensure that their employees are regularly tested for the presence of SARS-CoV-2 antigen, either in the workplace via a rapid antigen test designed for self-testing (i.e. for use by a lay person) or via a rapid antigen test performed by a healthcare provider, at a frequency of at least once a week.

In addition, the employer is obliged to keep a record of the tests performed, in which the date of the test and the name of the person who underwent it are recorded.

Employees’ Obligations

Employees are required to take a rapid antigen test at the employer's request at a specified frequency, with the exception of those, who:

• have completed a covid-19 vaccination that is at least 14 days old,
• have laboratory-confirmed covid-19 disease if the period of ordered isolation has elapsed and no more than 180 days have elapsed since the first positive test,
• have undergone an RT-PCR test within the last 7 days with a negative result,
• have undergone a rapid antigen test by a healthcare professional in the last 7 days with a negative result.

Employees who meet the exemption from testing must prove this to their employer, in particular by a certificate of performed vaccination or a certificate issued by a healthcare provider.

Employees who, do not come into contact with third parties due to the nature of their work (e.g. home office workers), are also not required to undergo a rapid antigen test.

If the employee is not present at the workplace on the day of testing, he/she will take the test subsequently on the day of his/her arrival at the workplace.

What to do if an employee refuses testing?

An employee who refuses to undergo a rapid antigen test at the workplace shall wear respiratory protective equipment (respirator or other similar equipment meeting at least all technical conditions and requirements for the product, including a filtration efficiency of at least 94 % according to the relevant standards) at all times when present at the workplace, as well as maintain a distance of at least 1.5 m from other persons and eat separately from other persons.

The employer is obliged to report this fact without undue delay to the locally competent authority for the protection of public health and to ensure, by means of organisational measures, that the employee’s encounters with other persons at the workplace are limited to the necessary extent.

Can an employer process testing or vaccination data?

Data on testing performed or vaccinations completed are personal data related to the health status of the employee and their processing is prohibited under the GDPR, with some exceptions. However, the exceptions include “processing necessary for the purposes of the performance of the obligations and exercise of the special rights of the controller or the data subject in the field of labour law”. Such obligations include the obligation to test employees (except for specified exceptions, which employees must prove to the employer) and to keep records of the tests carried out in accordance with the current extraordinary measure of the Ministry of Healthcare, which is therefore the legal basis for processing data on the testing carried out and also on completed vaccinations, or for keeping records of tested and vaccinated employees. At the same time, in the current context, the broad public health interest of preventing the spread of covid-19 must be born in mind to justify this interference with employee freedoms.

Records of employees tested and vaccinated

In accordance with the emergency measure of the Ministry of Healthcare and the GDPR regulation, these records should only contain the basic identification data of the employees, i.e. the name plus the information on the testing (date of the test and its result) or on completed vaccination (date of the last dose). According to the extraordinary measure of the Ministry of Healthcare, the employee is obliged to disclose the vaccination information to the employer, or to prove that an exemption from the mandatory regular testing applies to him/her. If an employee refuses to disclose his/her vaccination status to the employer, he/she will be in breach of his/her duty and should be regarded as unvaccinated (i.e. should undergo regular testing at the workplace).