Ministry of Health: Obligation to vaccinate medical services

• The Labor Code authorizes the employer to request the employee to submit a declaration of compliance with the obligation to undergo vaccination against COVID-19.
• Failure to undergo vaccination against COVID-19 may justify an employer introducing changes to the work organization of an employee who has not received such vaccination.
• Failure to undergo vaccination against COVID-19 may justify the termination of an employer from an employee who does not undergo such vaccination.
• Actions taken by the employer in connection with the failure of its employees to comply with the obligation to undergo vaccination against COVID-19 should be implemented in such a way that they comply with the principle of equal treatment of employees.

More comment:

In accordance with the provisions of the Regulation of the Minister of Health of March 20, 2020 on the declaration of an epidemic in the territory of the Republic of Poland (Journal of Laws of 2022, item 340), the obligation to vaccinate against COVID-19 applies in particular to:

1) persons practicing a medical profession within the meaning of Art. 2 clause 1 point 2 of the Act of 15 April 2011 on medical activities (Journal of Laws of 2021, items 711, 1773 and 2120) in entities performing medical activities and persons performing professional activities in these entities, other than the performance of a medical profession ;

2) employed persons and persons providing pharmaceutical services, professional tasks or professional activities in a generally accessible pharmacy or pharmacy outlet.

The above persons must be vaccinated against COVID-19 no later than March 1, 2022.

Pursuant to Art. 221 § 4 of the Act of June 26, 1974 - Labor Code (Journal of Laws of 2020, item 1320, as amended), the employer is entitled to request the employee to provide personal data other than those specified in § 1 and 3 of this editorial unit of the Labor Code, when it is necessary to exercise the right or fulfill the obligation resulting from the law.

According to Art. 221 § 5, first sentence of the Act of June 26, 1974 - Labor Code, the employee's personal data is made available to the employer in the form of a declaration made by that person.

Considering the fact that the obligation to undergo vaccination against COVID-19 for certain (above-mentioned) groups of employees results from the generally applicable law, and thus the fulfillment of this obligation is a prerequisite for the legal provision of work by these employees in normally defined places (entities performing medical activities and generally accessible pharmacies or pharmacy outlets) the employer is entitled to demand that the employee obliged to undergo vaccination against COVID-19 submit a declaration of compliance with this obligation.

An employee's failure to submit such a declaration or submission of a declaration that he or she has not been vaccinated against COVID-19 results in the recognition that such a person does not fulfill the obligation resulting from the generally applicable law.

In the above situation, the employer (as a party to the employment relationship) has the rights specified in the provisions of the Labor Code.

Depending on the actual circumstances in a given workplace, the employer may organize work in such a way that an unvaccinated person performs work in a way that does not pose a risk of possible infection with the SARS-CoV-2 virus of other people (other employees or persons for whom the is the activity of the employer) or terminate the employment relationship with an unvaccinated employee.

The actions referred to above should be undertaken in such a way as not to expose the employer to the allegation of unlawful discrimination.

Source: MZ