You have not been vaccinated?  The company will send you unpaid leave, but it won't fire you

The company will get information about whether a particular employee is convalescing, vaccinated, or has an updated negative SARS-CoV-2 test. This is the result of the description of the special covid law amendment bill available in the list of legislative acts of the government (prepared by the Ministry of Health).

As planned, the new regulations will go into effect in September this year. They are designed to help companies operate during a pandemic, but in reality they raise a lot of doubt. Since the employer will be able to send a non-vaccinated employee to another job or on unpaid leave, he cannot terminate his contract (even if, due to refusal of vaccination, in practice through no fault of his own, he is unable to provide him with a job ).

It is also not known whether these preventive measures will be the responsibility of the company or its right only. It’s not clear how long the unpaid leave will last, for example. Additionally, employers must consider potential claims if they send some of their unvaccinated people to other jobs, and others to unvaccinated work (the latter may find themselves discriminated against).

The data shows that at least several million wage earners have not yet been vaccinated. Will these millions of employees be able to send them on unpaid leave overnight? After all, this means depriving yourself of sources of income and insurance, including health insurance. It is unacceptable – says Andrzej Radzikowski, President of OPZZ.

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Employees who do not meet any of the above requirements (vaccination, infection or negative test) will be authorized to work outside the permanent location where it is provided, for example remotely, or to other types of assignments, with pay corresponding to the new commitments (i.e. implicitly, on example at a discount). An alternative solution is to refer to unpaid leave. Companies will appreciate that they finally have access to this information. Another wave of epidemics awaits us and employers must be able to shape working conditions that ensure safety, says the professor. Jacek Musina, advisor to the board of directors of the Lloyatan Federation.

He emphasizes that employers positively evaluate the direction of changes, but also see their shortcomings. – In special cases, it may not be possible to keep the job of an unvaccinated person. This applies, for example, to a small hairdressing salon with two female employees, one of whom is not immune, and the use of services requires all employees to make preparations. Everything indicates that after the changes, the company will only be able to send an unprotected person to another job or on unpaid leave, and not terminate the contract – he adds.

Dr. Dominika Dörre-Kolasa, attorney and partner at Raczkowski, believes in a similar way. – If the worker, for example, due to health restrictions, is practically unable to perform his duties because he has not been vaccinated, then dismissal is justified. The reason is objective and on the part of the employee. After the changes, I’m skeptical about whether that’s allowed, because the regulations will determine what solutions the company can take against people who haven’t taken the vaccine. At the same time, unpaid leave is not a completely equivalent solution, as it can mean a job freeze and the inability to accept a new person – he points out.

He maintains that the new solution may also cause claims from employees. – If, for example, one employee is sent to work remotely, and another employee is sent on unpaid leave, then the other will be deprived not only of pay, but also of insurance, including in case of illness. If you use such solutions, you will probably have to establish selection criteria for them in order to avoid accusation of unauthorized differentiation of employees – adds Dr. Dörre-Kolasa.

It is also unclear whether the new solution is a right or an obligation for entrepreneurs. – Companies demanded access to information and the necessity of obtaining it. The question is whether they take into account the responsibility that comes with gaining knowledge. If they do not decide, for example, to remove an unprotected employee from their duties and it turns out that they will infect, for example, a client or a co-worker, they should take into account the appropriate claims – emphasizes Andrzej Radzikowski.

Experts also point out other doubts. It is not known how long the employee will be sent on unpaid leave (that is, without pay) and whether it is possible to hire people on the basis of replacement contracts. – In the current situation, it may be difficult to hire new employees only for a limited time – the professor points out. Messina.

It should also be noted that the contract cannot be terminated during the period of unpaid leave. Perhaps the government wants to kill two birds with one stone in this way, that is, on the one hand to facilitate the work of companies and on the other hand to prevent the expulsion of practically unvaccinated people (which is likely to be evaluated very negatively by voters).

The list of detailed objections to the solutions discussed is much longer. Dr. Dörre-Kolasa stresses that it is not yet known what the company should do if an employee refuses to provide said information (for example, does refusal mean that a subordinate should be treated as an unprotected person?). Certainly, access to information on contraindications to vaccination must be ensured. After all, some employees didn’t accept the vaccine because they couldn’t, and not because they didn’t want to – he adds.

Łukasz Guza

Dzienic Gazzetta Browna

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