Questions and answers in the light of Order RD-01-856/19.10.2021 of the Minister of Health from the point of view of the employee – employer relationship
The following publication aims clarify the rights that employees have in view of the requirements introduced by Order RD-01-856/19.10.2021 of the Minister of Health.
Given the complicated epidemiological situation on the territory of the Republic of Bulgaria, temporary restrictions are introduced in the work of many enterprises, such as /development centers, clubs, conferences, visits to fitness centers, gyms, restaurants, shopping malls are suspended, except for those explicitly specified in the order/.
For the first time, an exception is introduced from the applied restrictions in case 100% of the personnel of the indicated sites have been vaccinated, have suffered from COVID-19 and fully recovered or have a negative result from a conducted examination certified by valid documents. This exception creates conditions for the continuation of the work of the affected enterprises on the one hand, but on the other hand inevitably opposes the rights, obligations and interests of employees and employers.
In the following publication we will try to present the possible questions and answers that certainly would be of interest for many people in this situation.
- QUESTION: Is it possible for an employer to oblige its employee to be vaccinated in view of the fact that the latter performs the work assigned to it in an enterprise within the scope of order RD-01-856/19.10.2021 of the Minister of Health /for example an establishment located in a mall/?
ANSWER: The short answer is NO. The grounds for this answer is directly in the scope of art. 7 of Order № РД-01-726 of 23.12.2021 for the organization of the immunization campaign against COVID-19 of the Minister of Health, where the immunization against COVID-19 is recommended and free and is at free will. In addition, the employment contract concluded between the employer and the employee lists in detail the conditions for holding the respective position, if vaccination against COVID-19 is not included in the requirements for holding the position, it cannot be additionally required by the employer. The latter would be a unilateral amendment to the employment contract, which is inadmissible because the employment contract is a bilateral transaction, the consent of the employee for the change is also required.
- QUESTION: Is it possible for an employee in a store located in a shopping mall to perform its work duties if it has not been vaccinated and has not suffered from COVID-19 and fully recovered?
ANSWER: It is possible in case he has a negative result from a test performed up to 72 hours before the start of work in case the test is by the PCR method and up to 48 hours before the start of work in case the test is by the fast antigen method COVID-19 test. In this example, the employee should be tested by the above methods once every two or three days, depending on the method chosen by the employee.
- QUESTION: Who should pay for the research according to the above methods?
ANSWER: The answer to this question is ambiguous and an established practice is not yet available. From the interpretation of art. 127, para. 1, point 3 of the Labor Code, the employer is obliged to provide healthy and safe working conditions. The provision of Art. 4, para. 1, point 3 of the Health and Safety at Work Act, according to which the employer must ensure healthy working conditions by providing the necessary organization and resources. From the above norms it can be concluded that it is incumbent on the employer to provide how employees prove their health in the conditions of COVID-19 and specifically whether they are carriers of the virus and a potential threat to other employees and customers of the enterprise.
- QUESTION: Can the employer oblige the employee to perform the necessary tests in accordance with Order RD-01-856/19.10.2021 of the Minister of Health?
ANSWER: The short answer is NO. The employer has no right to force the employee to take a test if he or she does not wish to do so. Again, the employment contract is the basis of the employer-employee relationship. In case the condition for periodic examination by the employee for holding the specific position is not set in it, the employer has no legal grounds to oblige its employees to be tested. However, another issue is that workers who refuse to take the test cannot work due to their inability to be at work. In this case, the employee may be subject to disciplinary liability, as failure to examine him/her will be interpreted by the employer as culpable non-performance of his/her duties – non-appearance at work and non-compliance with the rules for health and safety conditions labor – violations argued in Art. 187, para. 1, item 1 and item 5 of the Labor Code.
The opinions and theoretical statements in this article are for information only and aim to present the point of view of the author and are relevant at the time of publication. For questions and comments on specific cases, please seek the assistance of a competent lawyer, legal adviser or consultant.