View of nationwide testing without emotion – Employer vs. employee

Update of 31.10.2020

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In today's article we provide you with an overview of the nationwide testing of residents of the Slovak Republic for COVID – 19 from a legal point of view. We update this article every day as the topic is subject to constant and substantial changes. In the article, we focus mainly on the relationship between employee and employer.

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Full-scale testing

First of all, we provide factual information on nationwide testing.

The first deadline for nationwide testing was set for 31 October 2020 to 1 November 2020. All persons in the Territory of the Slovak Republic can participate (i.e. voluntarily). However, if these persons do not participate in the testing (and are not exempted, e.g. persons under the age of 10, cancer patients, etc.), they will be subject to the so-called "curfew" – from 02.11.2020 to 08.11.2020 and from 05.00 to 01.00. Exceptions to the curfew are provided below in the infographic.

Persons with health or other restrictions, seniors or possibly other more vulnerable populations who naturally reside only in the home environment and do not maintain close social contact are not recommended to participate in nationwide testing. However, even if they do not participate in both the first and second dates of the nationwide testing, they will be banned from curfew.

A second deadline to date is scheduled for November 7, 2020 to November 8, 2020. This is only an announced and yet unconfirmed deadline.

Nationwide testing from the perspective of employer and employee

Across-the-board testing will have a significant impact on employment relationships. Since there is a real possibility that not all employees in the Territory of the Slovak Republic will participate in the full-scale testing, at least three different scenarios can be foreseen, with a particular impact on employees' rights:

(i) the employee participates in the full-scale testing and has a negative result;

(ii) the employee participates in the full-scale testing and has a positive result;

(iii) the employee does not participate in the full-scale testing.

1. The staff member shall take part in the full-scale testing and shall have a negative

In that case, the staff member may continue to carry out his professional activities, with standard measures in place to prevent the spread of COVID-19.

2. The staff member shall take part in the full-scale testing and shall have a positive

In such a case, the staff member shall be obliged to inform his general practitioner thereof and shall subsequently recognise him as temporarily incapacitated by reason of the quarantine measure. Such temporary incapacity is also commonly referred to as a 'pandemic PN'. The difference with standard temporary incapacity consists, for example, in the fact that, within the meaning of Paragraph 293er of the Social Insurance Act, an employee is entitled to sickness benefit from the first day of such temporary incapacity. It is also the case that an employee is entitled to sickness benefits during the "pandemic" period after the first day of 55% of the daily assessment basis.

However, a positive result in testing does not exclude that the employee agrees with the employer to carry out work e.g. through the Home Office.

3. The staff member shall refuse to take part in the full-scale testing

As mentioned above, if an employee refuses to take advantage of the opportunity to participate in free nationwide testing, a curfew will apply to him. From the point of view of his employment, this means that he cannot appear at the place of work and such a situation has several possible solutions or consequences:

(a) Agreement with the employer:

A. if the nature of the work so permits, they may agree to carry out work from home so-called "Home Office" –in this context, it may be noted that there is also an interpretation according to which the employee is entitled (therefore not necessary agreement) to carry out his work from home-office (§250b(2)(b) of the Labour Code), if the nature of the work so permits,

B. excused absence from work (Section 141 of the Labour Code),

C. Holiday

D. compensatory leave,

E. obstacles on the part of the employee within the meaning (Section 141(3) of the Labour Code).

(b) The employee and the employer shall not agree:

A. if the employer has ordered testing (attention cannot be ordered across the board, but only testing for COVID-19, and should also bear the cost of such testing), then it is possible for the employer to consider the employee's absence as unexcused and to take the legal action provided for in the Labour Code against the employee (reduction of leave, immediate termination of employment or termination according to seriousness)

B. if the employer has not ordered testing, then the absence of an employee at the workplace as an obstacle to work on the part of the employee for reasons of general interest (civil obligation) can be considered (also as readily by the Ministry of Labour, Social Affairs and Family of the Slovak Republic). In this case, leave is granted without compensation.

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Employers can also test their employees separately

Companies employing more than 4000 employees and operators of critical infrastructure elements could apply to the Ministry of Defence of the Slovak Republic for certificates, registration forms, antigen tests and a representative of the Ministry of Defence of the Slovak Republic to supervise the test run in order to carry out such a procedure by 27 October 2020.

Eligible applicants under this measure could also be groups of firms that could set up a common sampling point within a single site and ensure that at least 4000 people participate in the testing.

Employers with fewer than 4000 employees may also carry out such testing, but are not entitled to apply to the Ministry of Defence for the material security necessary for testing. This concept can be implemented by ensuring that the employer ensures, at his own expense, that employees have a negative result from the RT PCR test from 30 October 2020 to 1 November 2020. At the same time, please note that such smaller firms will implement a "second round" of such testing with an exact weekly interval.

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Update of 31.10.2020

On 30.10.2020 a decree was issued to the Public Health Office of the Slovak Republic ordering measures in case of public health threat to the regime of entry of persons into the premises of establishments and premises of the employer. Under this Decree, for example, when entering its premises, the employer may require his employees to prove that they have tested negative for COVID - 19. The Decree is available at the following link: https://www.minv.sk/swift_data/source/verejna_sprava/vestnik_vlady_sr_2020/ciastka_12_2020.pdf

Please note that the above information may be updated in the coming days. We will keep a close eye on any changes to population testing across the board, and we will update this article accordingly.

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