Employers and Covid-19: new responsibilities

The ongoing pandemic means that more and more obligations are being imposed on employers. On 29 December 2020, a regulation came into force that introduces an obligation to update workers' occupational risk assessment sheets. What are the sanctions for employers who fail to do so? What else should employers bear in mind in 2021?

OCCUPATIONAL RISK ASSESSMENT

One of the basic principles of Polish labour law is that the employer is obliged to protect the health and life of employees by ensuring safe and hygienic working conditions. To ensure that this principle does not remain just an empty provision, the Labour Code imposes a number of obligations on employers, the fulfilment of which is supervised by the National Labour Inspectorate. One of them is the obligation of the employer to assess and document occupational risks related to work performed by employees and to inform employees about these risks. This applies not only to employers who carry out activities that we usually associate with occupational risk (e.g. mining, heavy industry), but also to all other employers – including those whose employees work only in an office.

Risk assessment and documentation in this respect should be kept up to date by the employer. With regard to the COVID-19 virus, such an update is enforced by the latest amendment* to the regulation of the Ministry of Health on so-called harmful biological agents**, which came into force at the end of 2020. According tothese provisions, employers should, within 30 days of the entry into force of the new regulations, reassess the occupational risks to which an employee is or may be exposed, taking into account the impact of the COVID-19 virus on the work environment. The deadline for conducting such an assessment passed on 28 January 2021.

Employers who have not yet performed this obligation are committing an offence under Article 283 §1 of the Labour Code. According to this provision, anyone who, being responsible for the state of occupational health and safety or managing employees or other natural persons, fails to comply with the regulations or principles of occupational health and safety, is subject to a fine ranging from PLN 1,000 to PLN 30,000.

Such a fine may be imposed in the event of an inspection by the National Labour Inspectorate. An inspector of the National Labour Inspectorate may impose a fine on persons responsible for health and safety at work in a given workplace (and therefore also on the management board of a company, for example). The maximum fine is PLN 2,000. However, the National Labour Inspectorate may also file a motion with the court to further penalise the employer who committed the above offence. In such a case, the maximum fine that could be imposed by the court is PLN 30,000.

VACCINATIONS

Following the commencement of the SARS-CoV-2 vaccination programme in Poland and the entry into force of the aforementioned amendment, many employers began to wonder whether the availability of the vaccine (or at least theoretical availability) would result in any new obligations or risks for them. Above all, the question has arisen as to whether employers can require an employee to undergo vaccination. The answer to this question as of today is negative.

It is of course true that the aforementioned regulation officially recognises the SARS-CoV-2 virus as a new harmful biological agent and that this regulation states that in case of occurrence or possibility of occurrence in the working environment of such an agent against which a vaccine is already available, the provisions of the act regulating the obligation of vaccination in Poland*** shall apply. The provisions of that act, however, divide vaccination into mandatory and recommended vaccinations and provide that, in order to prevent the spread of infections and infectious diseases among workers exposed to biological pathogens, recommended preventive vaccinations set out in a special regulation**** shall be carried out. This regulation has not been amended since its adoption in 2012 and does not indicate vaccination against SARS-CoV-2 either as mandatory or as recommended. Therefore, it does not automatically follow from the fact of the aforementioned amendment of the regulation that employers may send employees for vaccination, require them to undergo such vaccination or present the appropriate certificate, etc.

Moreover, it should be kept in mind that no negative consequences can be drawn for a person from the fact that they have not been vaccinated. Of course, from the point of view of employers (and the general public) it would be best if as many people as possible were vaccinated. However, the regulations as they stand today do not make this task any easier. An employee who refuses to be vaccinated cannot be fired or punished for this reason today. Similarly, in the case of job applicants, the use of such a criterion when hiring new people is also not allowed and may expose the employer to liability under anti-discrimination legislation (a candidate rejected during the recruitment process could claim compensation of no less than the minimum wage).

EMPLOYEE ILLNESS

Simultaneously, questions have also arisen as to whether the amendment to the regulation affects the possible liability of the employer for an employee contracting the COVID-19 virus at work. Under the current regulations, SARS-CoV-2 is not considered an occupational disease, but this does not completely exclude the employer’s liability for such an infection. However, the workers would have to prove that there is a causal link between their illness and the damage they suffered and the employer’s act or omission.

Examples of such omissions that could theoretically increase the employer’s risk of liability could be, for example, failure to update an occupational risk assessment, failure to inform workers of the risks associated with COVID-19 or failure to comply with obligations set out in a regulation imposing certain orders or prohibitions on the employer in connection with a pandemic*****, such as a prohibition on a particular type of activity or an order to provide workers with protective equipment. Only in the case of certain industries, where employees carry out work indicated in the regulation of the Ministry of Health******, performed in conditions of exposure to harmful biological agents (e.g. work in healthcare settings or laboratories) could the lack of more specific preventive measures, e.g. appropriate air-filtering systems, also be relevant. However, the employees would still have to prove the connection between this omission and their own illness. In a situation where infections can occur in many other places outside the workplace, it would be very difficult to prove such a link.

Thus, it is clear that the risk of employer liability for an employee contracting COVID-19 does exist, but in practice it may be difficult for employeers to prove that their health has suffered as a result of their employer’s acts or omissions. However, this does not justify the conclusion that employers are excused from meeting their obligations. Even if, in a given case, the risk of employers being sued is low, it is important to remember the risk of penalties from the National Labour Inspectorate and, above all, the sense of responsibility for the people we work with every day.

* Regulation of the Ministry of Health of 11 December 2020 amending the Regulation on biological agents harmful to health in the working environment and the protection of the health of workers occupationally exposed to such agents [in Polish: Rozporządzenie Ministra Zdrowia z dnia 11 grudnia 2020 r. zmieniające rozporządzenie w sprawie szkodliwych czynników biologicznych dla zdrowia w środowisku pracy oraz ochrony zdrowia pracowników zawodowo narażonych na te czynniki (Dz. U. poz. 2234)].

** Regulation of the Ministry of Health of 22 April 2005 on biological agents harmful to health in the working environment and the protection of the health of workers occupationally exposed to such agents [in Polish: Rozporządzenie Ministra Zdrowia z dnia 22 kwietnia 2005 r. w sprawie szkodliwych czynników biologicznych dla zdrowia w środowisku pracy oraz ochrony zdrowia pracowników zawodowo narażonych na te czynniki (Dz. U. Nr 81, poz. 716 z późn. zm.)].

*** Act of 5 December 2008 on prevention and control of infections and infectious diseases among people [in Polish: Ustawa z dnia 5 grudnia 2008 r. o zapobieganiu oraz zwalczaniu zakażeń i chorób zakaźnych u ludzi (t.j. Dz. U. z 2020 r. poz. 1845 z późn. zm.)].

**** Regulation of the Council of Ministers of 3 January 2012 on the list of types of professional activities and recommended preventive vaccinations required for employees, officers, soldiers or subordinates undertaking work, employed or appointed to perform such activities [in Polish: Rozporządzenie Rady Ministrów z dnia 3 stycznia 2012 r. w sprawie wykazu rodzajów czynności zawodowych oraz zalecanych szczepień ochronnych wymaganych u pracowników, funkcjonariuszy, żołnierzy lub podwładnych podejmujących pracę, zatrudnionych lub wyznaczonych do wykonywania tych czynności (Dz. U. poz. 40)].

**** 5 Regulation of the Council of Ministers of 21 December 2020 on the establishment of certain restrictions, orders and prohibitions in connection with the occurrence of an epidemic situation [in Polish: Rozporządzenie Rady Ministrów z dnia 21 grudnia 2020 r. w sprawie ustanowienia określonych ograniczeń, nakazów i zakazów w związku z wystąpieniem stanu epidemii (Dz. U. poz. 2316 z późn. zm.)].

****** Regulation of the Minister of Health of 22 April 2005 on biological agents harmful to health in the working environment and the protection of the health of workers occupationally exposed to such agents [in Polish: Rozporządzenie Ministra Zdrowia z dnia 22 kwietnia 2005 r. w sprawie szkodliwych czynników biologicznych dla zdrowia w środowisku pracy oraz ochrony zdrowia pracowników zawodowo narażonych na te czynniki (Dz. U. Nr 81, poz. 716 z późn. zm.)].

Authors:

Jarosław Karlikowski, Attorney at law, Noerr

Anna Mirek, Attorney at law, Noerr