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22.07.2020

COVID-19 testing in the context of employment relations

The COVID-19 pandemic has heavily affected employment relations around the world, posing a number of doubts, challenges and issues to both employers and employees. We will look at the legal implications of COVID-19 testing in the workplace, assuming the PCR method as the most commonly used one.

Can an employer require an employee to take a PCR test?

The Bulgarian legislation does not provide specific answers regarding the rights and obligations of the employer in the current pandemic situation. Practical conclusions are based on some general obligations of employers, provided for example in:

► Art. 275, para. 1 of the Labour Code (LC): "the employer is obliged to ensure healthy and safe working conditions so that the dangers to the life and health of the employee are eliminated, limited or reduced" or

► Art. 282 of LC: "the employer provides conditions for sanitary and medical services to employees in accordance with sanitary norms and requirements."

A number of Orders of the Minister of Health and the Minister of Labour and Social Policy have attempted to specify the employer's obligations in relation to coronavirus prevention, but no explicit obligation has been introduced for employers to test their employees, for example with a PCR test.

A significant practical problem in this context is the relation between the obligations to ensure healthy and safe working conditions and the obligations of the employer in his capacity as personal data administrator . Undoubtedly, information on the health status of individuals falls into the category of "sensitive" information within the meaning of the General Data Protection Regulation (GDPR) and the Personal Data Protection Act. The Regulation came into force two years ago and introduced unprecedented sanctions for breaches of the rules on the processing of personal data. With this in mind, many employers began sending inquiries to the Commission of Personal Data Protection (CPDP) regarding various aspects of the processing of information about the health status of employees.

The CPDP has issued opinions on the issues of group testing of employees for COVID-19 (opinion reg. № NPMD-17-151 / 2020), as well as on the processing of health data and on informing employees in case of confirmed COVID-19 cases in the workplace (opinion reg. № NPMD-17-114 / 2020). CPDP concludes that Bulgarian legislation does not oblige employers to test their staff for coronavirus. Employers have the legal opportunity to organise testing without conducting it themselves. However, before undertaking such actions, employers should carry out a preliminary analysis (the so-called balancing test) to establish that the legitimate interests of the employer (protection of the health and ability to work of all staff) take precedence over the rights and freedoms of data subjects (the idea of limiting interference with the employee's privacy). If employers do indeed establish this precedence, they may issue an order for mandatory group testing to establish COVID-19 among employees. The processing of health data and data from genetic material samples, collected through group PCR testing, may be performed only by the competent health authorities, which are bound by the obligation of professional secrecy. and in accordance with applicable law (opinion Reg. № NPMD-17-151 / 2020).

The CPDP has not expressed an opinion in terms of who should cover the costs of COVID-19 testing in the context of labour relations. In principle, provided that it is employers who require and organize the testing, they should be the one to pay the respective costs.

Does an employer have the legal right to require an employee to take a PCR test on their own account after returning from leave or holiday, or can the employee refuse?

The employer can and should introduce such measures for access to the workplace that minimise the risk of spreading the COVID-19 disease. An example in this direction is the mandatory measurement of body temperature of all people entering the work premises, respectively the denial of access to employees with symptoms of acute respiratory diseases.

At the same time, the CPDP expresses a lot of reservations, for example, to the employer's control over employees doing remote work ("the control of the employer cannot be extended to the home and family of its employees" - opinion reg. № NPMD-17-114 / 2020). ). When working remotely, as well as while taking a holiday or leave, the employee does not endanger the health of the rest of the staff.

If the employer can prove that his legitimate interests "justify" the performance of a PCR test on an employee returning to work after a holiday or leave, it will also be his responsibility to organise and pay for it. There is no legal basis for directing employees to undergo such tests at their own expense.

Can an employee refuse to take a PCR test and under what circumstances?

An employee may refuse to take a PCR test for a number of reasons:

► if the employer insists that the employee bear the costs himself;

► if the employee has already undergone a recent test;

► if the employee does not rely on the trustworthiness of the tests or is for some other reason afraid to undergo test

The employer cannot force the employee to undergo COVID-19 testing against the employee’s will.

There are certain consequences to an employee’s potential refusal for testing. It is very likely that it will lead to the employee's disciplinary liability and generate a dispute to be resolved in court. If the court accepts the reasons of the employee to refuse to take a test, the court will cancel the imposed disciplinary sanction.

In this sense, it is worth mentioning the principle of good faithin the exrcise of rights and the performance of obligations of the parties to the labour relationship. The employee's good faith in the aforementioned situation should be reflected in his personal and collective responsibility and in assisting the employer in his efforts to limit the spread of the disease. The employer’s good faith should be reflected in limiting the interference in the personal sphere of employees to the minimum necessary in order to achieve the goals of data processing. The CPDP, for example, is exploring a number of possibilities for minimising and anonymising the processed personal data in group testing samples.

In brief, if both parties act with the consciousness that testing is done for reasons of mutual interest, the likelihood of disputes will be significantly reduced.


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