Poland: Can employer instruct employee to get vaccinated against Covid-19?

New obligation for employers

Every employer should be mindful of protecting their employees from Covid-19 infection, which is why in the act amending the Regulation of the Minister of Health on harmful biological agents for health in the work environment and health protection of employees professionally exposed to such agents, the legislator indicated that employers must update the occupational risk assessment to which an employee is or may be exposed in relation to acute respiratory distress syndrome (SARS-CoV-2) within 30 days from the entry into force of the regulation - by 28 January 2021. On the other hand, the update of the occupational risk assessment in relation to the other harmful biological agents indicated in the amendment should take place by 20 November 2021.

This obligation applies, inter alia, to the employers and employees involved in:

• food production,
• agricultural sector,
• facilities where employees have contact with animals or animal products,
• healthcare units,
• clinical, veterinary or diagnostic laboratories.

However, the solution applied by the Minister of Health has been imposed in a non-transparent manner. This obligation was not introduced in the amended version of the regulation, but appeared only in the amendment only. Example of such legislation should be assessed negatively, as it may mislead many employers. Due to the fact that when we would be reviewing the uniform wording of the updated regulation, we will not find any reference to the employer’s obligation to carry out an occupational risk assessment in relation to acute respiratory syndrome 2 (SARS-CoV-2). Thus, there is a risk that many employers will not conduct such an assessment, despite the fact that this obligation was imposed in the amending regulation, issued on the basis of Article 222(1) of the Labour Code. 

Could employers require employees to get a Covid-19 vaccine?

Pursuant to Paragraph 16 of the Regulation of the Minister of Health on biological agents harmful to health in the working environment and on the protection of the health of workers occupationally exposed to such agents states in the event of the occurrence or possible occurrence in the working environment of a harmful biological agent against which a vaccine is available, the provisions of the Act of 6 September 2001 on infectious diseases and infections shall apply accordingly. This statute provides that in order to prevent spreading of infections and infectious diseases among workers exposed to biological pathogens, recommended preventive vaccinations are carried out, required for the performance of professional activities, as defined in a different special regulation referred to in Article 20 of this statute. 

The Regulation of the Council of Ministers on the list of types of occupational activities and recommended vaccinations required for employees, officers, soldiers or subordinates undertaking the job, employed or designated to perform these activities does not include Covid-19 among the diseases. Therefore, under current law, the employer cannot instruct his employee to vaccinate against Covid-19. 

Such a demand of the employer (as well as, for example, refusing to enter into an employment relationship with an unvaccinated person) may expose the employer to liability for damages under anti-discrimination law. Nevertheless, we can expect that in the upcoming months there will be a debate as to whether this regulation should include Covid-19 and in relation to which professions. This may have severe consequences for both employers and the employees themselves, as the costs of carrying out such vaccinations and purchasing of the vaccines are borne by the employer. For the time being, Covid-19 vaccines are financed from the central budget, but this may change in the near future. In such scenario, employers would also be burdened with the responsibility of organizing the vaccinations, which could be controversial, especially in the context of increasing anti-vaccination movements. 

What sanctions may employers face if they fail to update occupational risk assessments?

If employers fail to update the occupational risk assessment to which an employee is or may be exposed in relation to Covid-19 by the 28th of January pursuant to Article 283 §1 of the Labour Code anyone who, being responsible for the state of occupational safety and health or managing employees or other natural persons, does not observe the regulations or rules of occupational safety and health, is subject to a fine from PLN 1,000 to PLN 30,000 (ca. EUR 220 to EUR 6,600).

In the event of an inspection by the National Labour Inspectorate, a fine may be imposed on persons responsible for health and safety at the workplace (and thus also on the management board). The maximum fine is PLN 2,000. However, the National Labour Inspectorate also has the authority to file a motion with the court to punish the employer who committed the above offense. In such a case, the maximum fine which may be imposed by the court is PLN 30,000.

Irrespective of liability for not fulfilling the obligations imposed by the regulation, failure to update the occupational risk assessment, inform employees about it and implement preventive measures to reduce the risk may also affect the employer's liability towards the employee. In the event when the employer's failure would result in deterioration of the employee's health as a result of contracting SARS-CoV-2, this could result in the employers' liability for damages to the employee.