DLA PIPER ALUMNI Location: Czech Republic

As the world grapples with the COVID-19 pandemic, businesses have been presented with a number of practical and legal employment issues. In particular, employers must address what steps should be taken to ensure workplace safety and recently the issue of vaccinations for employees has become increasingly relevant in this area. Can an employer require employees to be vaccinated against COVID-19?

At the outset, it is worth noting that vaccinations against COVID-19 are given on a voluntary basis in the Czech Republic and are fully covered by public health insurance for all persons insured in the Czech Republic. The legislation of the Czech Republic does not contain a legal rule that would explicitly stipulate the obligation to be vaccinated against COVID-19. However, the Labour Code imposes an obligation on employers to ensure the health and safety of employees and to take measures to create a safe and healthy working environment. The question is, can employers require employees to be vaccinated on this basis?

In the context of the requirement to vaccinate employees, it is necessary to take into account the right to ensure the personal integrity of the individual, which is considered one of the most important constitutionally protected values of the Czech Republic. Therefore, any interference with this right must be carried out solely on the basis of the law.

Other provisions of the Labour Code state that employees are obliged to undergo vaccinations if a special legal regulation requires them to do so. This regulation is followed by the Act on the Protection of Public Health and the Decree on Vaccination against Infectious Diseases, that specifies which vaccinations are compulsory and for which work activities this obligation applies. However, no obligation to vaccinate against COVID-19 is stated in these regulations.

Vaccinations against COVID-19 are therefore completely voluntary in employment relationships and, as a general rule, employers cannot require their employees to be vaccinated. This applies to both new and existing employees. An employer has no legal reason to inquire about the vaccination status of an employee or prospective applicant (with the current exception of employees returning from abroad and the related emergency measure of the Ministry of Health, provided that this measure is not overturned by the Supreme Administrative Court). If vaccinations are to be made compulsory for employees it is essential that the legislation is amended accordingly.

If an employee refuses to be vaccinated it is not possible to conclude a breach of their duties or a failure to meet the prerequisites or requirements of their performance in the workplace. In any event, this cannot be used as a reason for terminating their employment. If the employer was to prevent an unvaccinated employee from entering the workplace without mutually agreed alternatives (e.g. an agreement to work from home), this would constitute an obstacle to the workplace on the part of the employer and the employee would be entitled to full wage compensation for the duration of the obstacle.

An alternative would be to introduce other measures, such as regular testing for unvaccinated employees. However, such measures should be based on the specific nature of the job or the nature of the workplace. It should be clear that there is an increased level of risk and therefore such measures are necessary. Even on this assumption, any action by the employer to take measures against COVID-19 remains legally very complicated. Before taking such action, it is advisable to seek advice and carefully assess all necessary circumstances.