In the light of labor relations and regulatory framework, the question arises whether employers are entitled to require employees to provide proof of vaccination against Covid-19 (or alternatively a negative test or a confirmation that they have previously contracted the virus) as a precondition for entering work premises.
Existing legislation in Serbia does not directly regulate this question and with no official position of the competent state bodies publicly available, a clear-cut answer to the above cannot be given.
In absence of explicit regulation or official position by competent authority, we believe that the employer, in accordance with the Labor Law and in particular the Law on Safety and Health at Work, may require evidence of vaccination, past illness or a negative test (i.e. proof of Covid-19 status), provided that such condition for presence in work premises is incorporated in the Risk Assessment Act. Given that the assessment of risks in the work environment is performed by experts who have a license to perform workplace safety and health assessment, such experts need to determine whether it is necessary to introduce evidence of Covid-19 status as a prerequisite for safe work for all or for individual work positions and/or work premises.
Even if the said experts find that evidence of Covid-19 status is a necessary condition for ensuring health and safety at the employer’s premises, another and even more important question arises: what rights or recourse does the employer have if the employee does not present the required evidence on Covid-19 status while his/her presence is necessary in the employer’s premises? It is certain that this does not provide grounds for termination of employment or referral to unpaid leave. However, the employer might have other options to deal with the Covid-19 status issue depending on various circumstances such as specific job requirements, the content of the employer’s labor acts, employment agreement as well as employee’s readiness to cooperate. Thus, each specific case needs to be analyzed in order to determine a proper solution.
In addition to the aforementioned dilemma concerning the right of the employer to prescribe proof of Covid-19 status as a mandatory measure in the field of safety and health at work, it is important to keep in mind that the employer must meet the other obligations regarding the processing of personal data that are contained in the aforementioned evidence, which represent especially sensitive personal information for processing of which it is necessary to meet various preconditions beforehand, in order for the processing to be in accordance with the law.
This text is for informational purposes only and is not legal advice. Feel free to contact us if you need additional information.
Milorad Glavan, partner