With effect from 17 January 2022, the Ministry of Health has issued a new emergency measure of the Ministry of Health No.: MZDR 461/2022-1/MIN/KAN, which introduces new rules for mandatory periodic testing of employees. The emergency measure is expected to be effective for two to three weeks.
Employers will have a duty to ensure that employees are tested with antigen tests (RATs) twice a week at the workplace so that the next testing of the employee will take place the third day after the previous testing. The testing duty applies to, among others, trainees, seconded employees and volunteers.
If the employee is not present at the employer’s workplace on the day of the testing date, the employee will be tested on the day of his/her arrival at the workplace.
Employers will need to set up a process for refusal of testing by an employee, in which case they will have a duty:
- to report the refusal of testing to the regional health station, and
- to provide regimen measures for such an employee to wear an FFP2 or equivalent respirator until further testing, maintain a minimum of 1.5 m spacing from other persons, eat separately from others and limit exposure to others to the extent necessary, where practicable.
They will also be required to keep a record of the tests performed, including the date of testing and the names of employees who were tested on that date, to comply with reporting obligations in the event of a positive test, and to issue certificates in accordance with the emergency measure.
Employers will be able to apply for an allowance for purchased and used tests through the application at https://www.samotesty-covid.cz/.
In practice, this means that the employee at the employer’s request (the emergency measure explicitly provides for this duty) must take an antigen test at a specified frequency at the workplace, as described above.
An exception to the mandatory testing is made for employees who can duly prove (Tečka or confirmation) that they:
- had a PCR test within the last 72 hours,
- had undergone an antigen test carried out by a health care professional within the last 24 hours,
- are preventively tested under this emergency measure with their another employer, or
- due to the nature of the work at their workplace, do not meet other people except those living in the same household as them or who do not carry out work at the workplace (e.g. home office).
The emergency measure also lays down the detailed requirements for the process of an employee who has tested positive.
Possible consequences of refusal of testing by an employee
If an employee fails to comply with the obligation to be tested, i.e. refuses to be tested and does not prove, that one of the above exemptions applies, new obligations to comply with workplace regimes (wearing a respirator, eating separately, observing spacing etc.) arise.
In the event of an employee’s breach of an obligation arising from a legal regulation, the employer may, under certain conditions, give notice of termination, in particular pursuant to Section 52(g) of the Labour Code (“for persistent, less serious breach of an obligation arising from legal regulations relating to the work performed”). In such a case, however, the employee may only be given notice of termination if he or she has been warned in writing of the possibility of termination (letter of reprimand) in connection with the breach of such an obligation within the last six months.
Furthermore, it should be noted that when assessing whether the quoted reason for termination is fulfilled, the consistency or repetition of the breach of duty and the seriousness of such breaches must be carefully assessed.
For example, it should be said that a refusal to be tested while carefully following the follow-up regime is certainly less serious than a case where the employee both refused to be tested and followed the regime. In that case, under certain conditions, a serious breach could also be considered (no need for a letter of reprimand and repetition to give notice, the notice period is maintained) or, in special cases, a particularly serious breach (possibility of immediate termination without notice).
Of course, the employer may also agree to expel the employee from the workplace, especially in the case of non-compliance with follow-up measures or their objective impracticability, and the employee will not work and will not be provided with wage compensation, as this will be an obstacle to work on the part of the employee.
What about self-employed persons and members of corporate bodies?
Self-employed persons will have to be tested twice a week under similar conditions if they meet other persons who do not live in the same household as them at the place where they carry out their main activity.
Like the self-employed, persons acting as members of bodies corporate will have to be tested twice a week under similar conditions if they meet other persons who do not live in the same household as them at the place where they carry out their activity.
If you had any questions about testing, please do not hesitate to contact us.
Mgr. Jakub Málek, Managing Partner – firstname.lastname@example.org
Ráchel Kouklíková, Legal Assistant – email@example.com
07. 01. 2022