Can employers in Bulgaria require employees to get vaccinated?   

Employers in Bulgaria cannot require employees to get vaccinated, in so far as the state itself does not oblige individuals to get vaccinated. At present, vaccination against COVID-19 in Bulgaria is a voluntary act that everyone can take or not take in accordance with their general health status, beliefs, etc. The absence of a vaccine or of a completed vaccination cycle does not constitute any violation, including a disciplinary one, and cannot engage the disciplinary liability of the employee.

In the future, however, it is possible that hypotheses of compulsory vaccination be introduced. The Bulgarian legislation regulates various other vaccines, which are mandatory and are part of the immunisation calendar. In this sense, compulsory vaccination against COVID-19 would not be a precedent.

Employers face a challenge that has to do with assessing whether and to what extent they can collect information on the vaccination status of their employees. Order No. РД-01-856 / 19.10.2021 of the Minister of Health stipulates that as of 21.10.2021 various activities are being suspended, such as visits to shopping centres, stores with a retail area of over 300 sq.m., etc. These measures, however, may not be applied if 100% of the staff are vaccinated or have recovered from COVID-19, respectively have a negative test result, and visitors are controlled to meet the same conditions (item 31 of the Order).

A question emerges from the point of view of labour law and personal data protection: On what grounds can employers process information about the vaccination status of employees?

Earlier this month, the Commission for Personal Data Protection (CPDP) published an Opinion (Opinion with Reg. No. ПНМД-01-93 / 2021 of 06.10.2021) explicitly stating that:    

“At present, the national legislation does not regulate the extended use of personal data from the EU Digital COVID Certificate for purposes other than facilitating the right to free movement in the Union during the COVID-19 pandemic and only within the time limit set by Regulation (EU) 2021/953. However, and in view of the need to comply with the orders of the Minister of Health introducing anti-epidemic measures, personal data controllers may process aggregated data on the vaccination status of individuals to assist them in carrying out risk assessment in ensuring healthy and safe working conditions. The only legal possibility for administrators, other than to ensure balance in the execution of both the orders of the Minister of Health and the data protection legislation, is to verify the EU Digital COVID certificate without storing the results. These actions can be performed only upon voluntary presentation of the certificate, and the lack of such presentation cannot be used to restrict the rights and freedoms of individuals."

What does this mean in practice? 

Obviously, the employer can either suspend their activity (if, of course, it falls within the activities listed in the aforementioned order of the Minister of Health), or continue their activity if the entire staff meets the requirements of item 31 of the Order. When referring to instructions of the CPDP that the verification of employee certificates "can be done only in case of voluntary presentation of the certificate, and the lack of such presentation cannot be used to restrict the rights and freedoms of individuals", the employer practically finds themselves in a standstill. It is quite possible and realistic to think that even employees who do have a certificate may refuse to present it. As a consequence, they would not be working, but would still receive remuneration.(1)

In short, it turns out that instead of serving as an incentive to increase the percentage of vaccinated individuals, unclear and contradictory legal norms, administrative acts and practices can have the opposite effect.

A potential solution to this problem could be if the time, during which the employer continues to carry out their activities, but cannot admit to work part of the staff (who have not been vaccinated/recovered from COVID-19/with a negative test, or are refusing to present a certificate) is considered as idle time for reasons with the employee, respectively, during this time the employee in question does not receive remuneration.

The ever-changing epidemic situation creates uncertainty in a number of areas, including the legal one. In this sense, there is a clear perspective for a number of disputes to emerge in the future. However, it is difficult to predict the direction of the respective judicial and administrative case law.   

(1) The special rule of Article 267a of the Labour Code, which was adopted last year as a specific anti-crisis measure of labour legislation states: “For the time of suspension of work in the cases under Article 120v (i.e. in the event of termination of work in a declared state of emergency or a declared state of epidemic emergency/ employees are entitled to their gross remuneration."