The employee is at work on Saturday. What should we do?

Direct employees who are working on Saturday to go for a test on Sunday. The employer is obliged to provide the employee with the necessary time off for testing if it cannot be performed outside working hours. In this case, testing is also possible on Sundays, regardless of whether a particular municipality recommends taking the test at a specific time according to surname or place of residence.

The employee is working all weekend. What should we do?

You must provide the employee with the necessary time off for testing (including travel). There are two potential legal bases for this: obstacles to work due to medical examination or treatment or obstacles due to carrying out the employee’s civic duty. We prefer the first opinion.

This will apply if the employee does not actually have the opportunity to take the test in his/her spare time  Testing takes place from 07:00 to 21:30. (so employees may be able to take a test before or after their work shift).

Paid or unpaid leave?

In relation to the wage compensation, if the employee has not yet used up seven calendar days this year for examination or treatment wage compensation must be provided. If the employee has already used up seven days, s/he will be granted unpaid leave.

If you choose the option according to which participation in testing is the performance of civic duty, then unpaid leave will be granted.

On Monday, is the employer entitled to check whether an employee has been tested?

Yes. The entitlement is based on Health and Safety regulations.

According to the preliminary opinion of the Slovakian Office for Personal Data Protection, there is no legal basis (apart from consent) for checking whether an employee has been tested in the current measures. The preliminary opinion does not take into account the importance of occupational health and safety, while the legal basis would only be created by the decree proposed by the Chief Hygienist (see below). In relation to the GDPR in this case, we also draw attention to the existence and possibility of using the EDPB (European Data Protection Board) guideline. It means to inform employees about the processing of their personal data and apply an exception to the processing, which is a significant public interest/fulfillment of a legal obligation. The issue raises legal uncertainty, but given the short time and the COVID-19 situation itself, we recommend taking a pragmatic approach in relation to these measures. The risk of a dispute cannot be ruled out. Arguments do exist (and there are many), but they do not guarantee success and could be questioned by the authorities.

Under a new resolution of the Slovak Government, the Chief Hygienist has recommended the adoption of a decree resolving employers’ questions regarding the testing requirement s (i.e. it will be an employer’s duty to confirm an employee has been tested). We are still waiting for the result.

The employee came to work and has neither an RT-PCR nor a certificate from the ministry. What should we do?

Send him/her home and consider it an obstacle to work on the part of the employee, or agree, as we write in the answer below.

What about working time? Are we obliged to pay a salary to an employee we have sent home?

From a practical point of view, we see the following possibilities of for an agreement, namely:

• taking a vacation;
• taking compensatory leave (if the employee has overtime hours s/he can use);
• home office regime (for administrative positions or other positions where work is possible from home, the employees may also request it, and the employer must provide it if there are no serious operational reasons to prevent it);
• use of paid leave with the obligation to work this time as soon as possible after a return.

If the employer or employee is not interested in an agreement, then you can give him or her unpaid leave for the period of absence.

We opted for unpaid leave. Do we have any other responsibilities?

Yes. Notify the Social Insurance Agency of the interruption of the employee’s social insurance and at the same time deregister the employee from the Health Insurance Company. Don’t forget to re-register them.

Can we consider an employee’s absence to be unjustified?

We do not recommend it. Issues such as legitimate interests, good morals, the exercise of the employer’s right to the detriment of the employee are just the tip of the iceberg. The risks outweigh the potential benefits.

You mentioned GDPR. We do not record personal data in this matter. Why do we need to inform employees about their rights?

Transparency and good GDPR practice. Are you sure you are not processing personal data? If you are checking the tests, it automatically means that employees who work in a standard workplace are negative for COVID-19. Information and further assessment should be prepared for you by your responsible person (DPO).

Do you have any precautionary advice for us?

Yes, see below:

• Invite employees to take tests and instruct them on all the consequences if they do not go for them;
• Identify with contact details, who in your organisation employees will inform whether they are in compulsory quarantine;
• Clearly inform employees that they have a duty to inform you without delay of an obstacle that prevents them from working;
• Divide people into teams, assign people who can replace each team member if needed;
• Use a home office option, if possible;
• Establish a crisis team within your workplace