Can an employer require vaccination against COVID-19?
The employer must not require employees or even job candidates to be vaccinated for COVID-19, because there is no provision to entitle him to do so. According to experts, the employer can only encourage and create opportunities for vaccination, e.g. by funding it.
In accordance with Article 2221(1) of the Labour Code, when a worker is employed under conditions of exposure to harmful biological agents, the employer shall take all available measures to eliminate exposure and, if this is not possible, to limit the extent of that exposure, taking appropriate use of scientific and technical developments. Par. 3, on the other hand, constitutes a statutory delegation for the Minister of Health to adopt, in agreement with the Minister of Labour, a regulation in which, taking into account the different effects of biological agents on the human body and the need to take the necessary measures to safeguard against the risks arising from working under conditions of exposure to biological agents, it will lay down m.in. detailed conditions for the protection of workers against risks caused by harmful biological agents, including the types of measures necessary to ensure the protection of the health and life of workers exposed to these agents. , the scope of these measures and the conditions and manner of monitoring the health status of exposed workers.
Inaccordance with Article 20 of the Act of 5 December 2008 on the prevention and control of infections and communicable diseases in humans, the employer may, in order to prevent the spread of infections and infectious diseases among workers exposed to biological pathogens, carry out the recommended protective vaccinations required for the performance of certain professional activities. The catalogue of vaccinations required and the type of professional activity are, in turn, set out in the Annex to the Regulation of the Council of Ministers of 3 January 2012, issued on the basis of the statutory delegation contained in the above-that provision. There is no COVID-19 vaccine on this list. Nor does it refer to any list of professional activities for which SARS-CoV-2 virus would be a biological pathogen. Inaccordance with Article 2221(1) of the AE, when a worker is employed under conditions of exposure to harmful biological agents, the employer shall take all available measures to eliminate exposure and, if this is not possible, to limit the extent of that exposure, taking due advantage of scientific and technical developments. However, this provision does not give an automatic basis for the employer to oblige the employee to vaccinate against SARS-CoV-2. On the other hand, it requires the employer to assess the degree of exposure to biological agents in the workplace, while referring m.in. to the provisions of the Regulation of the Minister of Health on harmful biological agents for health in the working environment.