COVID-19 and work relations

The employee must be aware of everything concerning the health risks in the working environment, as well as of the precautions for preventing the effects of biological risk factors, the hygiene requirements, the use of personal protective equipment, prevention of hazardous situations, and action in the case of a risk of an accident. This means that after conducting or updating the risk analysis and implementation of new measures, the employees must be notified thereof. If the employees do not know why certain measures have been implemented or why the employer has established new rules, misunderstandings will arise. Thus, it is important for the employer to explain why vaccination is important and how the employer will proceed if the employee refuses vaccination. 

Pursuant to clause 6 (2) 7) of Regulation No. 144 of the Government of the Republic of 5 May 2000 on the occupational health and safety requirements for working environments affected by biological agents (hereinafter the regulation), if a hazard cannot be removed by implementing the measures which are listed in section 5 of the same regulation, the health risk of the employees must be reduced to the lowest possible level, and vaccination must be made available for employees who come in contact with biological risk factors for which efficient vaccines are available.

If the results of the risk analysis show that vaccination is particularly important in certain sectors or areas of activity (e.g. healthcare, nursing homes) and other measures are not effective enough to protect the health of employees or customers/patients, vaccination may be justified.

It is important for the employee to be aware of the consequences of their refusal of vaccination for the employer, i.e. if the employer will be required to reorganise their work, provide additional personal and general protective equipment or if there is a risk of their employment contact being terminated under extraordinary circumstances in justified cases if it is not reasonably possible for the employer to reorganise the work or implement other measures for the efficient alleviation of risks and if there is a high risk of the spread of the virus, which would put to risk the patients or customers of the employer. 

However, there is an example in case law where the employer cancelled the employment contract on the basis of clause 3 of subsection 1 of § 88 of the Employment Contracts Act, but the court considered the cancellation void and instead deemed lay-off to be a valid basis for cancellation.

The overarching principle of the Occupational Health and Safety Act is that if an employer establishes a requirement in the work environment, they shall also bear the related costs.

Pursuant to subsection 12¹ (3) of the Occupational Health and Safety Act, the planning and implementation of measures concerning occupational health, safety and hygiene must not involve financial costs for the employees.

The Act also specifies (subsection 13¹ (7) of the OHS Act) that the costs related to the health examination of an employee and the costs related to vaccination according to the regulation shall be borne by the employer. The employer must also, at their own expense, provide an employee with personal protective equipment, special work clothes, and cleaning and washing facilities if the nature of the work so requires, and arrange training for the employee in the use of personal protective equipment (clause 13 (1) 11) of the OHS Act), etc.

Examples:

• The employer has assessed the biological hazards in the work environment and requires that workers must submit a negative PCR test or be tested daily by means of rapid antigen tests in order to mitigate the risks. The costs of testing must be reimbursed by the employer.
• The employer requires workers to provide a certificate of COVID-19 recovery or vaccination in order to mitigate the risks. The employer gives a reasonable time to provide the certificate, given that all adults can undergo vaccination, but there is a six-week period between the first and second dose. After this deadline, the employer will no longer have to reimburse the costs of the tests.

In practice, a situation may arise where the employer has set a deadline for vaccination, but the employee does not want to be vaccinated and proposes to present the results of the PCR test every 2–3 days or a daily rapid test to the employer. If the employer agrees to such a solution, the costs of testing are borne by the employee. If the employer does not agree with this solution, then

1. the work of the employee is reorganised in such a way as to significantly reduce the exposure to people and thus the level of risk level of the biological hazard, or
2. if this is not possible, cancel the employment contract extraordinarily due to the non-compliance of the employee on the basis of clause 88 (1) 2) of the Employment Contracts Act, following all the requirements applicable to extraordinary cancellation of the employment contract prescribed by law.

The parties must agree on holiday without pay. If an agreement is reached, the employee may use holiday without pay. The parties may also agree on using annual holiday with pay.

Under subsection 69 (4) of the Employment Contracts Act, holiday schedules may be changed by agreement between the employer and the employee. Therefore, if the employer and the employee reach an agreement on changing the holiday schedule, the holiday schedule can be changed in accordance with the agreement. 

The employer cannot lay down special rules for the payment of holiday pay and it must comply with section 70 of the Employment Contracts Act. The holiday pay is calculated on the basis of the average salary of the employee, that is, the salary they have earned in the last six months. If the employer pays the employee less holiday pay than prescribed by law, the employee has a claim against the employer for the payment of the holiday pay, which can also be referred to the labour dispute authority (i.e. the court or the labour dispute committee). The period for claiming holiday pay is four months from the time when the person became or should have become aware of the violation of their right (section 3¹ of the Employment Contracts Act).

The employer cannot require the employee to take a sick leave. Pursuant to the information on the website of the Health Insurance Fund, a sick leave certificate can be opened in addition to the usual illnesses if the employee has contracted COVID-19 or if the employee has been in close contact with a person diagnosed with COVID-19. Close contact is a person who lives with, is permanently in the same place of residence as the person diagnosed with COVID-19, or has been in close contact in any other way.

More information benefits for incapacity for work is available at https://www.tervisekassa.ee/en/people/benefits-provided-health-insurance-fund/benefits-incapacity-work 

Biological hazards are microorganisms (bacteria, viruses, parasites, fungi, etc.), including genetically modified microorganisms, cell cultures, and human endoparasites, as well as other biologically active substances which may cause infectious diseases, allergies, or poisoning.

Pursuant to section 2 of Regulation no. 144 of the Government of the Republic of 5 May 2000 ‘The occupational health and safety requirements for working environment affected by biological hazards’, biological hazards are divided into risk groups. There are four risk groups:

The hazards included in the first risk group are not known to make humans ill; the group includes bee venom, as well as various toxins secreted by plants, snake venom, etc.

The hazards included in the second risk group may make humans ill and are thus a risk to the health of employees, but are not accompanied by the risk of infection for the wider population; there are efficient prevention and treatment methods for these hazards. This includes legionellosis or legionnaires’ disease and Lyme borreliosis. COVID-19 is caused by a novel coronavirus which is today officially known as SARS-CoV-2 (Severe acute respiratory syndrome coronavirus 2). Coronaviruses are currently placed in the second risk group in the classification of biological hazards, but the entire directive concerning these issues is being revised and updated by the European Commission and it is known that they are planning to move the older family members of COVID-19, such as SARS (Severe acute respiratory syndrome) and MERS (Middle East respiratory syndrome) to the third risk group. Thus, it cannot be ruled out that the virus which causes COVID-19 will be consequently classified to a higher risk group.

The hazards of the third risk group may cause severe illnesses for humans and are thus a serious threat to the health of the employee and may be accompanied by the risk of infection for the wider population, but there are efficient prevention and treatment methods for these hazards. This risk group includes hepatitis, or jaundice, and pneumonia.

The hazards of the fourth risk group cause severe illnesses for humans, are thus a serious threat to the health of the employee and may be accompanied by the risk of infection for the wider population; there are usually no efficient prevention and treatment methods for these hazards. This risk group includes the Ebola virus. 

In the case of all works which are accompanied by the risk of coming in contact with biological hazards, the employer must determine the type, extent, and duration of the risk of the employee being infected in the course of the working environment risk analysis and, based on this, assess the risk for the employee’s health and implement necessary precautionary measures.

Since an employee comes in contact with other people in the case of most jobs, the contact with a biological hazard is always present in these cases. While contacts with customers or co-workers have not called for implementation of special measures so far, the situation has now changed which means that there is new information about the impact of the hazard on human health. Thus, the current risk assessments must be reviewed and necessary measures must be implemented to reduce the health risk. It is up to every employer to decide which measures are necessary in a specific working environment as they know the operations and the working environment of their company better than anyone else. We stress the importance of the risk analysis because it is not possible to find good solutions unless the nature of the problem is clear. If the idea of conducting the risk analysis seems to be a huge task, we will make it easier by explaining below what should be focussed on in the case of biological hazards.

• From the perspective of preventing the spread of COVID-19, it is important that an employee who has been in close contact* with a potentially contagious person notified their employer.
• From the perspective of preventing the spread of COVID-19, it is important that an employee informs their employer of the test results. It is equally important to inform the employer of negative test results to stop co-workers from worrying.

A family physician is an expert in the field of medicine, whose opinion and decision can and must be accepted by the employer. In this case, the employee must be allowed back to work, even though the test is still positive. 

To prevent the spread of the virus in the work environment, assess the likelihood of the biological hazard occurring and, if necessary, take measures to help prevent the risk.

If the employer has determined, on the basis of a risk assessment, that there are biological risk factors in the work environment (including infection from the coronavirus), the employer must decide what measures to take to prevent or reduce the hazards. Personal protective equipment (e.g. masks) should be used if the risk assessment shows that the risk of disease cannot be prevented or reduced by the use of collective protective equipment (e.g. safety glass to prevent the spread of the virus) or by organisational measures (maintaining distance, availability of disinfectants). 

The employer has an obligation to inform employees of the results of the risk assessment of the working environment, including health risks and measures taken to prevent damage to health. The employer explains to the employees what possible hazards are identified in the risk assessment (risk of infection in a specific company, while doing a specific job) and what are the measures to be implemented. As collective protective equipment or work organisation measures must be preferred to the use of personal protective equipment, it must be explained to employees why the use of personal protective equipment was decided. 

The employer must also ensure that the personal protective equipment does not place an excessive load on the user, is suitable for the user and to be used in certain working conditions. If these requirements are not met for some employees, the employee must contact the employer and seek solutions in cooperation (e.g. using a different type of mask or reorganising work, allowing the employee to take more breaks). 

An employer's risk analysis may stipulate that a vaccinated employee does not have to wear a mask. The actual situation regarding the spread of the virus shall always be taken into account, therefore, vaccinated employees may also be required to wear a mask in high-risk sectors or a safety glass may be installed in places where it is possible.

It is the employer's responsibility to ensure a work environment where the possibility of the virus spreading is minimised in order to ensure a safe and healthy working environment for the employees. Used masks, gloves, etc. are not suitable for regular waste collection.