The Czech government has extended the obligatory testing of employees to employers employing between 10 and 49 employees. Please find below answers to the most common questions related to the testing.
When is the change effective?
There are three milestones for employers employing between 10 and 49 employees:
- as of 17 March 2021, employers have to secure for the employees antigen COVID-19 tests performed by a provider of medical services, or tests suitable for self-testing to determine the presence of the SARS-CoV-2 virus antigen, on a weekly basis;
- as of 19 March 2021, employees should start to undergo tests, as instructed by the employer;
- as of 26 March 2021, the employer cannot allow the presence at the workplace of an employee who has not undertaken a COVID-19 test with a negative result in the last 7 calendar days (save for limited exceptions, as stated below).
What tests do we have to provide to employees?
The employer must secure antigen COVID-19 tests performed by a provider of medical services, or tests suitable for self-testing. In case the employer provides to employees tests suitable for self-testing, such tests must be approved for this purposes by the Ministry of Health. A list of approved tests is accessible at the following link.
Can we ask employees to undergo the test at a public testing site or at home?
The employer has the obligation to provide tests, therefore you should not transfer the responsibility to employees by asking them to take their test at a public testing site. If, however, an employee presents a test from a public site not older than 7 days, such employee can be admitted to the workplace (i.e. you do not have to perform an additional test at the workplace).
If, within the last 7 days, the employee has performed work exclusively outside the employer’s workplace, the employer should allow him/her to take the test outside the employer’s workplace (e.g. at home).
How to calculate the threshold of employees?
All employees of the employer, including those on long term leave or working from home, are counted in the threshold.
Furthermore, agency employees, as well as other individuals, who perform work at the premises of the employer together with the employees, based on a different type of agreement than an employment contract (typically contractors) would be counted into the threshold.
Do we have to test employees working from home?
No, employees working from home do not need to be tested. However, if such employees plan to come to the workplace, or visit a client, a test is required.
If, within the last 7 days, the employee performed work exclusively from home, the employer will allow him/her to take the test at home.
Which employees are exempt from the obligation to test?
The following employees are exempt from the obligation to undertake a COVID-19 test:
- individuals who have contracted COVID-19 in the past (confirmed by a laboratory result), are no longer in isolation, do not have any COVID-19 symptoms, and their first positive RT-PCR or antigen test is not older than 90 days;
- employees who have been fully vaccinated, 14 days following their last dose of vaccine.
Are employees obliged to take the test?
Unless an exemption applies, employees are obliged to undergo the COVID-19 test based on the request of their employer.
In case one of the exemptions apply to the employee, he/she must prove such exemption by a certificate issued by a medical provider.
Similarly, if the employee undertook an RT-PCR test or an antigen test performed by a provider of medical services, the employee must provide you with a certificate issued by such provider of medical services.
What if an employee has COVID-19 symptoms?
In case an employee has COVID-19 symptoms, he/she should not take the provided test or go to the workplace, but should immediately follow the instructions for symptomatic persons available here, in particular stay at home and contact his/her general practitioner or the provider of occupational health services (if such obligation was imposed by the employer).
What if an employee refuses to take the test?
In case an employee refuses to take the test (and no exception applies), you cannot allow the presence of such employee at the workplace.
The absence will be qualified as unpaid leave. An argument can be made that such refusal can be considered as a breach of obligations arising from legal obligations related to the performance of work, and the employer may take disciplinary measures (in our view, a written warning letter under Section 52 (g) of the Labor Code would be an adequate disciplinary measure).
What if an employee tests positive?
In case an employee tests positive with the antigen COVID-19 test provided by the employer, the employee must without any delay notify the employer, leave the workplace and return to his/her residence, and notify the provider of occupational health services (if such obligation was imposed by the employer) or his/her general health practitioner, or the hygiene authority.
Such employee would be sent for a PCR-RT COVID-19 test to determine the presence of the SARS-CoV-2 virus to confirm the result of the antigen test.
Do we need the consent of employees with processing the test results?
No, as it is in the public interest in the field of public health and you have a legal obligation to process and collect the data (including the data about health) you should not ask for a consent, but you have to inform the employees about the processing, including its legal basis, recipients and retention period.
What are the main obligations to ensure the processing of personal data in this context is legal?
In particular, you have to inform the employees about the processing and update your records of processing activities.
You also have to ensure that the data are only used in direct connection with the fulfilment of the obligations imposed by the extraordinary measure and that you store only the necessary extent of the data. Generally, if an employee takes the COVID-19 test, you should only store basic identification data of the employee (name, surname, insurance number), data on the employee’s health insurance company, data on the date and time of the test and the result of the COVID-19 test. If the employee is exempt, you should limit the processed data to the identification data of the employee and the reason for the exception from testing.
Furthermore, as with every processing of personal data, you should ensure that access to the data is limited only to authorized persons that have a need to know and that the data are secured. We also recommend storing the data locally.
Can we record the test results?
Yes, the law explicitly requires you as an employer to keep evidence of the performed tests and their results.
How long can we keep the data?
The period of keeping records of performed tests of employees and other data is currently not expressly prescribed by law. However, you are always obliged to keep any personal data only for as long as they are necessary.
You should therefore keep the evidence of performed tests of employees as well as the information on the exceptions at least until the end of the extraordinary measure to perform mandatory testing of employees and further during the period when the state authorities or health insurance companies may examine whether you complied with your obligations. You should also monitor whether further guidance has not been issued.
What should we do if we need to engage third parties as our service providers?
If the third party as your service provider has access to the personal data, you have to review whether a data processing agreement is in place and whether this processing is covered by the agreement (in particular whether health data and the relevant purpose are stated).
Is there any official guideline on how to organize tests at the workplace?
Who bears the costs for the tests?
The employer bears the costs for the tests. However, you may claim a contribution from the health insurance company, up to CZK 60 per test. The health insurance company’s contribution is paid for a maximum of 4 tests per employee per month (up to CZK 240 per month per employee). COVID-19 tests can be performed more often, but this is voluntary and at the employer’s expense.
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We will continue to keep you updated on any major developments that may impact your business.
In the meantime, do not hesitate to contact us if you have any questions or comments.