Following the loosening of restrictions adopted at the beginning of the pandemic the Czech government declared a further countrywide state of emergency on 5 October 2020 in response to the deteriorating epidemiological situation and increased number of hospitalisations. The state of emergency is currently anticipated to last until 14 February 2021, but, it is likely to be extended. As a result, a number of restrictions have been adopted.
Understandably, this may be creating concern for employers and their workforces. Below we answer some key questions to clarify employers' legal obligations and to support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
On 13 November 2020, the Czech government introduced a 5-colour stage anti-epidemic system (the "PES") as one of the tools being used to evaluate and deal with the epidemic in the Czech Republic. PES is based on an index of epidemiological risks (on a scale 0-100) to indicate the level of COVID-19 emergency in the Czech Republic, and the corresponding measures that need to be put in place to prevent the spread of COVID-19. Currently, the Czech Republic is in stage 5 of PES, which is the highest stage with the most stringent restrictions. Following the announcements of government officials, a shift to lower stages of PES I is not expected for several weeks. The government is, however, now working on an amended version of the PES system that would allow more businesses to be open (especially in stage 4), if a number of additional protective measures (e.g. a maximum number of customers per square meter of the sale area) are observed.
As of 27 December 2020, all restaurants, shops (except from grocery stores, drug stores etc.), entertainment facilities and many others are temporarily closed to the public. Following the forced closure of certain businesses, the government has been adopting various measures to support affected employers in order to prevent the dismissal of employees and the bankruptcy of employers.
In general, employers should ensure that they are taking all necessary steps to protect their employees. All employers are obliged to inform their employees about health risks that may arise in connection with the performance of their duties and to ensure that working practices do not create undue risks to employees.
Employers should carry out ongoing risk assessments and consider any factors that may make employees particularly susceptible to infection. Currently, it is recommended that remote working arrangements are put in place in all businesses (if that is possible). Employees are required to wear face masks and to keep a distance of two meters. In addition, regular testing of employees is recommended where possible. All these measures correspond to stage 5 of PES. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitiser.
We further recommend notifying employees where they can access more information if they are concerned. Relevant information can be found on the web portal administered by the Czech Ministry of Interior at https://covid.gov.cz or at the website of the Czech Ministry of Health (https://onemocneni-aktualne.mzcr.cz/pes).
Can employers request or require information from an employee about potential or actual exposure to the virus?
The question of whether employees can be asked about their exposure to the COVID-19 virus, or to provide information to an employer for further sharing with its customers sits firmly in the crossover between data privacy and employment.
Any such data must be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has tested positive or is suffering from any symptoms) is considered as special category of personal data under the applicable legislation, and stricter data protection requirements apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from the European data privacy perspective. Employers will find that the type and extent of the information they can process, and the legal basis for doing so, may vary from country to country. As regards the Czech Republic, we summarize the main points:
- The Czech Data Protection Authority ("DPA") has published a brief statement and FAQ addressing data protection issues in relation to the COVID-19 outbreak. With respect to the processing of data by employers, the DPA states that based on the Czech Labour Code employers are obliged to adopt necessary and appropriate measures to protect the occupational health and safety and, therefore, the processing of employees' data will usually be derived from such measures. It also points out that the data processing (including data sharing) should be carried out within the boundaries set out by the governmental regulations aimed at combating the COVID-19 outbreak.
- In addition to the general provisions of the GDPR and the Czech Data Protection Act, employers must take into account the specific provisions of the national employment legislation, in particular the Czech Labour Code, and special legislation and recommendations issued during the current state of emergency.
- Under the Czech Labour Code, as a general rule, employers shall not request from their employees any information that does not relate to the employment and performance of work. At the same time though, employers are obliged to ensure the protection of the health of their employees at work and the employees are obliged to take all possible care of their own safety and health as well as the safety and health of other individuals at the workplace.
- According to the Ministry of Labour and Social Affairs guidance issued at the beginning of March 2020, when the first cases of the COVID-19 infection emerged in the Czech Republic, employees should notify their employer if they have returned from affected countries. Accordingly, it can be concluded that they should also inform their employer about any other potential risk of a COVID-19 infection.
- Employers are thus entitled to request information that is relevant to the occupational health and safety protection (e.g. whether an employee has recently been in contact with someone who was infected by COVID-19).
- Employers shall process the obtained information in accordance with the applicable provisions and key principles of the GDPR (including data minimisation, transparency, and security), taking into account the specific provisions relating to special categories of data (e.g. when information about health status is obtained).
- According to the DPA, the precautionary measures adopted by employers must also include communications to employees regarding any potential risks, including the provision of information on the presence of an infected individual in the workplace. In such a case, the employer should proceed by taking all necessary measures; however, the communication related to an infected person should be limited so that the dignity and integrity of that individual are not adversely affected.
- As regards the processing of employees' health data, employers may rely on the legal bases provided under Article 9(b) and (h).
- The DPA also addressed temperature readings at the workplace. The DPA's statement says that mere temperature measuring at the entrance (i.e. without any further keeping/recording of the information related to a particular person) does not create a processing activity and is therefore not subject to GDPR requirements. If the employer keeps and further processes any records from the temperature readings (it is recommended to minimise the data kept to whether a certain temperature threshold has been exceeded and the identity of the affected employee), the GDPR applies. The DPA emphasises that the necessity of temperature readings should be continuously assessed, taking into account various aspects such as the nature of the workplace or number of persons affected.
Employers may also face situations where a customer/client requires travel or health information relating to their employees when visiting the customer/client's site.
- Generally, any unnecessary local travel/meetings should be avoided to minimize the risk of further spread of COVID-19. Travel outside the Czech Republic is subject to a number of restrictive measures depending on the destination country..
- Employers should refrain from providing any specific information concerning their employees to third parties. Although it may be justifiable to inform customers/clients of the potential risk of COVID-19 infection, provision of information relating to specific employees might be problematic.
- However, the client/customer may require employees of third parties visiting their site to comply with general precautions and it would be up to the employer to ensure compliance with this requirement. In addition, the client/customer may adopt their own relevant measures when visitors/employees of third parties are entering its premises.
- There is currently no specific guidance in this regard, therefore, general data protection principles apply. In particular, any disclosure of personal data requires a valid legal basis under the GDPR.
In addition, the position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. A number of EU governments have issued further guidance and more of them are still considering whether emergency legislation may be required, particularly if the situation escalates. The position will need to be kept under review as the situation evolves and further guidance becomes available.
What should employers do if an employee is absent or infected?
Employees are obliged to inform employers about any risk of their possible infection in order to prevent further spread of COVID-19 to other employees. Thus, employees should notify their employer about any contact with infected individuals. In this case, employers can request that employees immediately contact their general practitioner by phone or other means without personal contact. If there is any risk, the general practitioner will order 10 days quarantine. Employees travelling from certain countries (depending on the level of risk of infection), must provide medical COVID-19 test certificate and in certain cases also have to undergo 10 days quarantine.
Employers are obliged to ensure the occupational safety and health protection of all employees at work with regard to risks which might endanger employees' life and health during their performance of work. Thus, if the employee refuses to contact a general practitioner the employer should notify the local Health Station which would consider imposing the quarantine on that employee.
Employers are not empowered to unilaterally order testing of their employees for COVID-19. However, if the employer suspects an employee of being infected, it can notify the Health Station which may consider doing appropriate tests. If the employee is found to be COVID-19 positive, the local Health Station is responsible for further investigation of recent contact of the sick employee with other employees, customers or third parties. The local Health Station will then further evaluate the risks and it can also take appropriate measures to help prevent further outbreaks of COVID-19. However, given the large number of individuals who have tested positive, the contact tracing has repeatedly failed, and so the public Health Stations are not always able to trace adequately (i.e. to trace all the relevant contacts).
To manage the absences of employees (caused due to the isolation, quarantine, taking care of children or infected relatives etc.), employers should inform employees about their absence policy and clarify the position regarding COVID-19. From the perspective of Czech law, employers will typically face the following situations regarding the COVID-19 outbreak:
- In general, employees may not refuse to attend the workplace because of a potential risk of the COVID-19. To avoid this situation, it is recommended to inform employees about adopted precautions protecting the employees' health during their performance of work.
- If quarantine is imposed on an employee, he or she is obliged to notify the employer and submit a medical certificate. During the first 14 calendar days of quarantine employees are entitled to a compensatory wage corresponding to 60% of his or her average earnings. The compensatory wage is paid by the employer; however after the first 14 calendar days, the employee is reimbursed through sickness insurance. Should the employee not be ordered to quarantine by a healthcare provider, the employer may still decide that the employee should stay at home (commonly known as garden leave). In such case, however, the employee would be entitled to a compensatory wage amounting to his or her average earnings. This shall not apply if working hours account (in Czech: konto pracovní doby) is used.
- If, as a result of anti-epidemic measures, schools have been closed, the employer is obliged to excuse the absence of employees taking care of their children that are younger than 10 years.
- If employees are not able to arrive at work because of public transport disruptions, employers are obliged to excuse their absence as well. Nevertheless, such absence would be considered as an unpaid leave.
- If possible, the employer and employee should agree on remote work arrangements. In that case, the reimbursement of employees does not apply. The Czech Labour Code regulates remote working only to a very limited extent; most conditions for remote working shall be agreed between the employer and the employee. Employees shall be instructed on how to perform their work remotely and appropriate technical solutions shall be adopted in advance.
What are employers' obligations where offices are partially or fully closed?
Employers who are not able to provide employees with work are obliged to reimburse them with a compensatory wage amounting to their average earnings.
According to a number of exceptions stipulated in the Czech Labour Code, the reimbursement might be lowered to 80% of employees' average earnings if the office/factory operations have been suspended due to problems with the material or power supplies, or due to some other operational reasons.
Furthermore, the reimbursement might be lowered to 60% of employees' average earnings (for any time within working hours when the employees does not work) in situations where an employer is unable to provide an employee with work within weekly working hours due to a temporary drop in sales of the employer's products or due to a drop in demand for services rendered by the employer (known as "temporary lay-offs" or "short time working"). The amount/level of the compensatory wage shall be discussed between the employer and trade unions (where applicable), and where no trade union operates, it shall be stipulated within the employer's internal regulation.
Every reduction of employees' reimbursements must be well reasoned as it is expected that it will be subject to employees' claims.
If the closure of the business results from the anti-epidemic measures, employees are entitled to 100% compensation of their wage. The affected employer may, however, apply for financial support, the details of which are described below.
Are there any governmental subsidies available?
The Czech Government extended and amended the "Antivirus" program which details how the state will use public funds to provide financial support to employers. The program currently applies until 28 February 2021.
Employers applying for financial support are obliged to fulfil the following conditions:
- they must comply with the provisions of the Czech Labour Code;
- they must have paid wages to the employees and also the mandatory contributions to the respective authorities;
- employees must continue to be in an employment relationship with the employer (i.e. they have not been dismissed).
Employers may be provided with financial support from the public funds under two regimes (A or B):
A. Reduction of business operation and/or quarantine ordered
Employers will be provided with financial support from the public funds for up to 80% of the super-gross wage (i.e. the amount paid by the employer, including social and health insurance contributions) up to a maximum amount of CZK 39,000 (with regard to each employee). This applies to the following situations:
- If operation of a business is closed as a result of anti-epidemic measures (regime “A Plus”), employers are provided with financial support from public funds in the amount of 100% of the wage + social and health insurance contributions paid by the employer up to a maximum amount of CZK 50,000 (per employee for the respective month).
- If quarantine is imposed on an employee, their employers is provided with financial support of 80% of their wage + social and health insurance contributions paid by the employer up to a maximum amount of CZK 39,000 (per employee who is ordered to quarantine/per month).
B. Related economic difficulties
Employers will be provided with financial support from public funds of 60% the wage + social and health insurance contributions paid by the employer up to a maximum amount of CZK 29,000 (per employee for the respective month). This applies in the following situations:
- Where there are obstacles to work on the employers' side due to the quarantine or child care needs of a significant proportion (at least 30%) of its employees, employees (except for those in quarantine or taking care of children) are entitled to receive 100% of their average earnings.
- Where there are obstacles to work on the employers' side due to shortages of supplies, employees are entitled to receive 80% of their average earnings.
- Where there are obstacle to work on the employers' side due to a drop in sales of the employer's products or a drop in demand for services rendered by the employer, employees are entitled to receive 60% of their average earnings.
Where can employers and employees access local and national advice?
The Institutions that provide current general and employment-related information regarding the COVID-19 in the Czech Republic are:
- Ministry of Health (http://www.mzcr.cz/);
- Ministry of Labour and Social Affairs (https://www.mpsv.cz/);
- The National Institute of Public Health (http://szu.cz/).
The government has also launched a new website with detailed information on COVID-19 and FAQs with respect to the current measures imposed (https://covid.gov.cz).
The PES system has also a dedicated website with an overview of all the 5 stages and the respective measures (https://onemocneni-aktualne.mzcr.cz/pes).
Last reviewed 26 January 2021