Although it may seem that the covid-19 pandemic has become completely obsolete, its impact and the experiences associated with it continue to resonate through society in various areas of our activities. It is no different in the area of labour law, which has undergone a decisive reform due to the need for constant adaptation to new conditions set by extraordinary government measures. The pandemic has accelerated the introduction of new elements of flexibility in the labour market, such as the massive implementation of teleworking. In sectors, where it has not been possible to introduce this, employers have been forced to step up measures to protect workers’ occupational health and safety in response to the spread of the respiratory virus.

To this day, court are still dealing with disputes arising from the conflict between the rights of individuals and generally protected interests. One of them is a dispute between an employer and an employee who refused to wear a face mask in the workplace during anti-epidemic measures and was therefore forced to take leave from work without pay. But was the employer entitled to order her to take unpaid leave, or was it an obstacle on the employer’s side, for which the employee was entitled to wage compensation? The Supreme Court dealt with these issues in its decision of 19 February 2024, Case No. 21 Cdo 1577/2022-180, the conclusions and background of which are presented in this article.

Circumstances of the dispute

The employee worked for the employer as a planner. In October 2020, in accordance with emergency measures issued by the Department of Health from time to time, the employer required all its employees to wear prescribed respiratory protection. However, the employee refused to wear the face mask on the grounds that she was unable to do so due to her medical condition. In response to this allegation, the employer requested that the employee provide a medical certificate showing that she was medically unable to work. The employee submitted a medical report stating that the employee has a long-standing non-infectious respiratory disease and therefore covering her airways with any substance is not recommended. However, this certificate raised reasonable doubts in the employer’s mind as to its credibility, as it was signed by a doctor with the same surname as the employee. However, the employee refused the employer’s invitation to undergo an extraordinary medical examination by an occupational healthcare provider. The employee was thus forced to take unpaid leave from 6 to 26 October 2020.

On 9 February 2021, she filed a lawsuit against the employer seeking reimbursement of wages and an apology for discrimination based on her medical condition. After the dismissal of the action by the court of first instance and the affirmation of the dismissal by the Court of Appeal, the dispute reached the Supreme Court.

Conclusions of the Supreme Court

The Supreme Court dealt with the interpretation of Section 3(2) of the Anti-Discrimination Act, which regulates discrimination against persons with disabilities consisting in the omission or refusal to take reasonable measures to ensure that a person with a disability has access to a particular employment, occupation or career advancement. The conclusion reached by the court in its reasoning is that where an employee has a disability which prevents or may prevent him/her from participating in working life, the employer must comply with his/her request for reasonable accommodation to enable him/her to participate. If the employer does not comply with the request, even though taking such a measure would not impose a disproportionate burden on the employer, the employer commits a discriminatory act under Section 3(2) of the Anti-Discrimination Act. In the present case, the employer was informed that the employee suffered from a long-term chronic health limitation which prevented her from performing her work under the new conditions set by the employer. Nevertheless, the employer insisted that the employee either perform her work under these conditions (of which she could not have known at the time the employment relationship was entered into) or take unpaid leave. Thus, the employer did not attempt to find a suitable measure, the implementation of which would have enabled the employee to perform her work.

In addition, the Supreme Court held that the employer was not obliged under the Government’s emergency measures in conjunction with the Public Health Protection Act, nor was he entitled, to control and require its employees to comply with the obligations imposed by those measures. Therefore, if it wanted to enforce the obligations on its employees, it should have included them in its internal regulations governing OSH. Consequently, in accordance with the provisions of Section 349(2) of the Labour Code, compliance with the obligation could be required under an individual instruction from a superior employee, which can only be refused if it is contrary to the law.

Thus, in the present case, the Supreme Court concluded that if the employer did not allow the employee to perform her work according to the employment contract, the reason being that the employee refused the employer’s new measure due to an imminent health risk, this was an obstacle on the employer’s side. Pursuant to the provisions of Section 208 of the Labour Code, in the event of an obstacle to work on the part of the employer, unless it is downtime or interruption of work caused by adverse weather conditions, the employee is entitled to wage compensation in the amount of average earnings.

The case will now go back to the court of first instance, which will have to deal with the legal conclusions of the Supreme Court.

Impact of the decision in application practice

Although one cannot disagree with the logic of the Supreme Court's reasoning, in the light of practical experience, taking into account the circumstances of the case, the decision under discussion appears too formalistic. In particular, the Supreme Court’s denial of an employer’s authority to enforce compliance with governmental measures to protect health during a pandemic is full of contradiction. For employers, this is a clear signal encouraging legal prudence even in exceptional and unprecedented circumstances. At the same time, the Supreme Court did not address the question of the veracity of the medical certificate submitted, which was undoubtedly one of the most important issues for employers in practice, but which remained unresolved.