The employee may be obliged to take vaccination

2022 February 8.
Author: BRSP

Government Order No. 598/2021. (X.28.) on the protection of workplaces against the coronavirus (“Government Decree”) was published. The rules of the Government Decree are applicable from 1 November 2021.

The most important rules of the Government Decree are the following:

  1. In order to protect the health on the workplace the employer is given the legal opportunity to make vaccination compulsory for employees who have not yet been vaccinated. Therefore, the vaccination can be made a condition of the work.
  1. If the employer makes vaccination compulsory, he must set a deadline for taking the vaccine, which should be at least 45 days for the dose of the single-dose vaccine and the first dose of the vaccine for the two-dose vaccine, while the second dose has to be taken at the time determined by the doctor.
  1. The employer informs the employees about this decision and its deadline electronically (i.e., it also possible by e-mail) or on paper based form
  2. An employee cannot be obliged for the vaccination for whom the vaccination is contraindicated for health reasons and which is supported by a medical opinion (this opinion may be a certificate issued by the employer’s occupational health doctor or a general practitioner).
  3. The employee confirms the vaccination with the protection certificate or other similarly accepted certificate.
  4. If the employee has not taken the vaccination within the time limit set by the employer, the employer may oblige the employee to take unpaid leave.
  5. If one year has elapsed from the order of unpaid leave and the employee does not prove to the employer that the vaccination has been taken place, the employer may terminate the employee’s employment with immediate effect.
  6. If the employee takes the vaccine during unpaid leave, the employer shall immediately terminate the unpaid leave.
  1. If the employee is otherwise released from work performance (e.g., he/she on sick leave or maternity leave), the employer may oblige the employee to take the vaccine after the termination of the release from work performance.
  1. The employer is entitled to process the data on the vaccination or its contraindication included the official certificate until the end of the emergency situation.

Based on the above legal regulations the most important practical conclusions are the following:

  • The employer has now become entitled to require employees to take the vaccine. So far, it has not had the legal possibility to do so. This, of course, only applies to unvaccinated employees.
  • Obliging to be vaccinated is only an option for the employer, i.e., the employer is free to decide whether or not to oblige the employees to do so. To ensure healthy and safe work, it seems to be a better approach to oblige the employees to do so. If, however, the employer does not oblige the employees to take the vaccine, there is no legal sanction for this, the employer cannot be penalized for this.
  • If the employer decides to require vaccination, it must announce this to employees by e-mail or on a paper based form and specify the length of time within which the employees must comply with this obligation. At least 45 days has to be provided for the first vaccination.
  • If the employee does not comply with the obligation to take the vaccine within the prescribed time limit, the only legal option for the employer is to send the employee on unpaid leave. Termination of employment can only take place after one year.
  • The unsuccessful expiry of the 45-day deadline for taking the vaccine does not in itself provide an opportunity to terminate the employment relationship by the employer.
  • The real sanction is that an employee cannot work and will not be paid if he / she fails to comply with his / her vaccination obligation.