When is the change effective?
The employees must receive their first test by 29 November 2021.
Who must be tested at the workplace?
All employees must be tested at the workplace, except for:
- Individuals who have been fully vaccinated, 14 days following their last dose of vaccine.
- Individuals who have contracted COVID-19 in the past (confirmed by a laboratory result), are no longer in isolation, do not have any COVID-19 symptoms, and their first positive RT-PCR or antigen test is not older than 180 days.
- Individuals who present a negative result of a RT-PCR test, not older than 7 days.
- Individuals who present a negative result of a laboratory rapid antigen test, not older than 7 days.
- Individuals who due to the nature of their work do not come into contact with third parties at the workplace, save for members of a common household.
Agency employees are considered as employees. Independent contractors have the obligation to undergo the testing under the same conditions as employees.
What tests do we have to provide to employees?
The employer must secure rapid antigen tests designed for self-testing (suitable for use by a lay person), or a rapid antigen test performed by a healthcare provider.
How often do we have to test employees?
Employees must be tested every 7 days.
Can we ask employees to undergo the test at a public testing site or at home?
The employer has the obligation to provide the tests, therefore you should not transfer the responsibility to employees by asking them to take their test at a public testing site. If, however, an employee presents a test from a public site not older than 7 days, such employee can be admitted to the workplace (i.e. you do not have to perform an additional test at the workplace).
Do we have to test employees working from home?
No, employees working from home do not need to be tested. However, if such employees plan to come to the workplace, or visit a client, a test is required.
Are employees obliged to take the test?
Unless an exemption applies, employees are obliged to undergo the COVID-19 test based on the request of their employer.
Can we require a proof of vaccination / recovery?
Yes, employees must provide evidence of their vaccination by presenting their EU Digital COVID certificate, or evidence of another exemption (recovery, negative test) in the form of a certificate issued by a medical provider.
What if an employee refuses to take the test?
In case an employee refuses to take the test (and no exception applies), you must notify the hygienic authority. The employee who refused the test must wear a respirator all the time at the workplace, keep a distance of 1.5 meters from other individuals, and be separated for meals.
The employer is also obligated to adopt such organizational measures to limit the meeting of this employee with other persons to the necessary extent.
The employer is entitled to send the employee home (to work from home). They may also be able to issue a form of written warning for minor misconduct for failing to undergo the testing.
What if an employee tests positive?
In case an employee tests positive with the antigen COVID-19 test provided by the employer, the employee must without any delay notify the employer, leave the workplace and return to their residence, and notify the provider of occupational health services (if such obligation was imposed by the employer) or their general health practitioner, or the hygienic authority.
Such employee would be sent for a PCR test to determine the presence of the virus to confirm the result of the antigen test.
Do we need the consent of employees with processing the test results?
No, as it is in the public interest in the field of public health and you have a legal obligation to process and collect the data (including the data about health) you should not ask for consent, but you have to inform the employees about the processing, including its legal basis, recipients and retention period.
What are the main obligations to ensure the processing of personal data in this context is legal?
In particular, you have to inform the employees about the processing and update your records of processing activities.
You also have to ensure that the data are only used in direct connection with the fulfilment of the obligations imposed by the extraordinary measure and that you store only the necessary extent of the data. Generally, if an employee takes a COVID-19 test, you should only store basic identification data of the employee (name, surname, insurance number), data on the employee's health insurance company, data on the date and time of the test and the result of the COVID-19 test. If the employee is exempt, you should limit the processed data to the identification data of the employee and the reason for the exception from testing.
Furthermore, as with every processing of personal data, you should ensure that access to the data is limited only to authorized persons that have a need to know and that the data are secured.
Can we record the test results?
The law explicitly allows the employer to keep evidence of the performed tests in the following extent – date of test and name of tested individuals.
How long can we keep the data?
The period of keeping records of performed tests of employees and other data is currently not expressly prescribed by law. However, you are always obliged to keep any personal data only for as long as they are necessary.
You should therefore keep the evidence of performed tests of employees as well as the information on the exceptions at least until the end of the extraordinary measure to perform mandatory testing of employees, and further during the period when the state authorities or health insurance companies may examine whether you complied with your obligations. You should also monitor whether or not further guidance has been issued.
What should we do if we need to engage third parties as our service providers?
If the third party as your service provider has access to the personal data, you have to review whether a data processing agreement is in place and whether this processing is covered by the agreement (in particular whether health data and the relevant purpose are stated).
Who bears the costs for the tests?
The employer bears the costs for the tests. However, the government has confirmed that employers will be able to claim a contribution from the health insurance company. Details are not yet available.
