The outbreak of Novel Coronavirus (COVID-19) has now been confirmed as a worldwide pandemic. The World Health Organization has warned that this is a public health emergency of international concern. The Czech government has declared a state of emergency as of 12 March 2020 in response to the coronavirus epidemic. As a result, a number of restrictions in order to prevent further COVID-19 outbreak have been adopted. Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below, we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
Recently, the Czech Government has adopted a number of regulations (including a lockdown of the Czech Republic) and recommendations directly affecting the majority of employers. From 14 March 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.
The Government has recommended that employers encourage remote working arrangements, allow employees to use their annual leave, and suspend all activities that are not essential for operation of their business.
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 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. 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 issuing a reminder to employees on actions they can take to help stop viruses like coronavirus spreading. Such advice may include:
- Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
- Put used tissues in the bin immediately
- Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available
- Try to avoid close contact with people who are unwell
We further recommend notifying employees where they can access more information if they are concerned. Relevant information can be found on the website of the Czech Ministry of Health (http://www.mzcr.cz/) or the National Institute of Public Health (http://www.szu.cz/).
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 to sign a declaration about their travelling history, their exposure to the 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 been tested positively or is suffering from any symptoms) is sensitive personal data and general 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 can summarize the following main points:
- The Czech Data Protection Authority ("DPA") has published a brief statement and FAQ addressing data protection issues in relation to the coronavirus outbreak. With respect to the processing of data by employers, the DPA states that based on the Czech Labour Code employers are primarily 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 coronavirus outbreak.
- Thus, 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, 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 the coronavirus).
- 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 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 in particular on the legal bases provided under Article 9(b) and (h).
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. With certain exceptions, travel outside the Czech Republic has been prohibited by the Government.
- 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 the coronavirus infection, provision of any particular 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 the 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 shall notify their employer in advance about any contact with infected people. In this case, employers can request that employees will immediately contact their general practitioner by phone or otherwise without personal contact. If there is any risk, the general practitioner will order 14 day quarantine. Employees travelling from abroad must contact their general practitioner immediately by phone, who will order a mandatory 14 day quarantine.
Employers are obliged to ensure occupational safety and health protection of all employees at work with regard to risks which might endanger employees' life and health during the performance of work. Thus, if the employee refuses contacting a general practitioner the employer should notify the local Health Station which would consider imposing the quarantine on the employee.
Employers are not empowered to unilaterally request testing of their employees for the COVID-19. However, if the employer suspects the employee of being infected, it can notify the Health Station that may consider doing appropriate tests. If the employee is found 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 prevent further outbreak of the virus.
The Czech Republic has started testing a new "smart quarantine system" that should help tracking the movement of infected citizens. The monitoring system should use data from mobile phones and payment cards of people who have tested positive to find all other potential people that could be infected as a result. Tracked citizens will need to give their consent to the monitoring, and the system is intended to be tested during the second week of April. At the time being the smart quarantine is limited to the territory of the South Moravia only, but it is expected to be extended for the whole territory of the Czech Republic soon.
To manage the absences of employees (caused due to the self-isolation, quarantine, taking care of children or infected relatives etc.), the employers should inform employees about its absence policy and clarify the position regarding COVID-19. From the perspective of the Czech law employers will typically face the following situations regarding the COVID-19 outbreak:
- In general, employees may not refuse attending the workplace because of a potential risk of the coronavirus. To avoid this situation, it is recommended to inform employees about adopted precautions protecting the employees' health during the performance of work.
- If the quarantine is imposed on the employee, he or she has to notify the employer and submit medical certificate. During the first 14 calendar days of quarantine employees are entitled to compensatory wage corresponding to 60% of his or her average earnings. The compensatory wage is paid by the employer; however after the lapse of the first 14 calendar days, the employee is further reimbursed through sickness insurance. Should the employee not be ordered the quarantine by a healthcare provider, the employer may still decide that the employee shall stay at home (commonly known as garden leave). In such case, however, the employee would be entitled to 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, the schools have been closed, the employer is obliged to excuse the absence of employees taking care of his or her child younger than 13 years.
- If employees are not able to arrive at work because of public transport disruptions, employers are obliged to excuse the absence as well. Nevertheless, such absence would be considered as an unpaid leave.
- If possible, the employer and employee may agree on remote work arrangements. In that case, the reimbursement of employees is not affected. The Czech Labour Code regulates remote working only to a very limited extent; most conditions for the 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?
The closure of a workplace would be considered an obstacle to work on the side of an employer.
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 the scope of 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.
For the sake of completeness, please note that at the time being, it is not completely clear whether the closure of offices/factories should be assessed as a measure ordered under the Public Health Protection Act or not. If the Act is taken to apply, the closure of the workplace would be considered a quarantine and employees would be entitled to a compensatory wage corresponding to 60% of their average earnings during the first 14 calendar days paid by the employer; afterwards the employees would be reimbursed through sickness insurance.
Are there any governmental subsidies available?
The Czech Government approved changes to the "Antivirus" program on the basis of which the state will use public funds to provide financial support to employers. The program covers the period between 12 March 2020 and 30 April 2020 and applications for the support can be filed from 6 April 2020.
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:
- Where there is an obstacle to work on the employees' side (e.g. quarantine was imposed on an employee), the employee is entitled to receive 60% of their average earnings paid by the employer (for first 14 days); and
Where there is an obstacle to work on the employers' side due to closure of operations resulting from anti-epidemic measures, the employee is entitled to receive 100% of their average earnings paid by the employer.
B. Related economic difficulties
Employers will be provided with financial support from the public funds for up to 60% 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 29,000 (with regard to each employee). This applies to the following situations:
- Where there is an obstacles to work on the employers' side due to quarantine or child care of a significant proportion (30%) of employees, employees (except for those in quarantine or taking care of children) are entitled to receive 100% of their average earnings.
- Where there is an obstacles to work on the employers' side due to shortages of supplies, employees are entitled to receive 80% of their average earnings.
- Where there is an 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.
There is also a third regime (C.) that may be applicable to businesses that continue their operations, but have suffered losses in their production or revenues. Details of this regime are expected to be announced shortly.
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/).
Last reviewed 3 April 2020