Can an employer ask employees about vaccinations?
The Polish legal system still lacks a clear legal basis that would allow the employer to freely (i.e. without exposing themselves to the risk of any liability) ask employees or job candidates whether they are vaccinated (in principle, not only for COVID-19, but in general). This means that asking about vaccination is currently fraught with risks that cannot be eliminated.
There are two areas of risk: the issue of personal data protection and labour law regulations – explains Anna Wiluś-Antoniuk, legal counsel at the LeasingTeam Group employment agency – in In both cases, the legal situation is unclear. Fortunately, changes in the regulations seem possible in the near future – there is no shortage of supporters of such changes.
GDPR and the question of whispering
In the area of personal data, the vaccination question includes the question about personal health data. Such data is particularly protected. The first theoretical legal basis for the processing of such information by the employer is the consent of the person in question, i.e. the fully free and voluntary provision of such information by the employee or candidate, in accordance with the relevant provision of the GDPR – says the lawyer of LeasingTeam – However, there is a systemic problem with consents in labour law – as a rule, it is assumed that they are never completely free on the part of the employee. Due to the employee’s dependence on the employer, it is not without reason that the employee always feels in some way forced to answer the employer’s question (or give other consent), because he feels that his employment depends on it. This makes data processing based on employee consent widely questioned in labor law. At the same time, it is indicated that in the employment relationship, the employee’s consent is free and informed only when the employee himself (on his own initiative) has provided the employer with some information. This would lead to the conclusion that the employer can have and process vaccination data, but cannot ask for it.
The second possible basis for the processing of such data is their necessity for the purposes of preventive health care or occupational medicine, or, to put it simply, health and safety reasons. Based on the assumption that the workplace is a community, a certain collective, it is increasingly pointed out that the question about vaccination justifies the priority of the common good over the individual good of the employee – explains Anna Wiluś-Antoniuk – in other words, despite the lack of obvious legal basis, the admissibility of the question about vaccination is still being postulated more and more often due to the overriding goal, which is to care for the health of all employees.
Unclear letter of the labour law
The Labour Code contains a catalogue of information that an employer may request from a job applicant. In this catalogue, there is no premise even remotely related to the so-called covid status. Therefore, interpreting the provision restrictively, it should be assumed that the employer has no right to ask a job candidate about vaccination at all.
In the case of persons already employed, the situation is similar, although Article 221 § 4 of the Labour Code allows the employer to request information other than those expressly mentioned in the provision, when it is necessary to exercise a right or fulfil an obligation resulting from a provision of law. On the basis of this provision, it is possible to try to invoke, for example, the employer’s obligation to ensure the safety of the staff and thus justify questions about vaccination.
Interestingly, the National Labour Inspectorate is reticent about vaccinations in the context of labour law, but “(…) invariably considers it expedient and justified for employees to undergo vaccination against COVID-19 as widely as possible, while noting that under the current law, undergoing these vaccinations is voluntary.”, while arguing that “(…) The employer is obliged to keep a register of work exposing employees to harmful biological agents classified as hazard group 3 or 4 and a register of employees exposed to harmful biological agents classified as hazard group 3 or 4”1. One of the above-mentioned threat groups (i.e. group 3) includes the SARS-COV-2 virus. Naturally, the categories of work resulting in exposure to harmful factors are strictly defined in the regulations, so it cannot be said that every person currently works in a situation of exposure (although common sense dictates that this is the case).
Nevertheless, it can be cautiously assumed that the actions taken by employers to determine whether they hire or recruit vaccinated employees will not be condemned in labor law. Unfortunately, so far there are no available judicial statements on the subject, nor fixed views of authorities in the field of law.
To ask or not to ask?
To sum up, questions about vaccinations expose employers to allegations of unlawful processing of personal data and violations of the provisions of the Labor Code, which may lead, for example, to allegations of discrimination (e.g. of an unvaccinated and unemployed job candidate). The practice tries to deal with such allegations by justifying questions about vaccination with, for example:
Regulations limiting the number of people at a gathering/event, which do not include vaccinated people – e.g. when organizing integration events;
Vaccination campaigns (competitions, promotional campaigns) – counting on the willingness of employees to voluntarily report such information to the employer in order to obtain some benefit/reward.
For the time being, however, any attempts to make employment dependent on vaccination remain fraught with risks that cannot be eliminated. However, the general climate that can be observed in the area of labour law allows for cautious optimism caused by the fact that the supporters of the admissibility of the question about the fact of vaccination seem to be the majority, says the LeasingTeam expert – and the likelihood of the employer winning in court or administrative proceedings is also increasing.
When making a business decision on whether to apply the requirement to vaccinate employees in a given project, it is therefore necessary to weigh the proportion of risk to the business (and therefore not only financial) value of the activities, and it should also analyse the legitimacy of the vaccination requirement in a given occupational group from the perspective of “common sense”, i.e. analyse whether it is possible to convincingly justify the real impact of the vaccination requirement on the safety or continuity of the workplace’s operations, or attempt to assess the potential transmission of the disease among and through unvaccinated workers.
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