A new draft law has emerged to help fight the epidemic, which regulates the employer's right to obtain test result data. The novelty is the liability for damages on the part of the employer in case of failure to take certain actions. 

Summary of the project:

• The draft covers not only employees, but also persons on a contract of mandate, contract for specific work, agency and provision of services, and entities (organisational units) with which such contracts have been concluded.
• Once a week such persons can test themselves for Sars-Cov-2 at the expense of the state. This is a right, not an obligation. Vaccinated persons also have this right.
• An employer (or other entity - see above) may request information from an employee (or other person - see above) about the result of a test, insofar as this is necessary to prevent the spread of COVID-19 in the workplace or other place designated for work (including remote work). This is not an obligation on the employer. But for the exercise of his right it is still necessary to assess whether such information is necessary from the point of view of preventing COVID-19.
• The deadline for providing the information is set by the employer - it cannot be earlier than 48h from the request (for the employee to perform the test - it cannot be later than 48h). Such information can only be requested from an employee once a week. In order to comply with the above requirements, employees will only be able to test themselves after receiving a request from their employer.
• The employee shall provide the information by showing a negative test result.
• The employee is not obliged to provide such information. If the information is not provided, the employee is considered to have failed the test.
• A worker with COVID-19 who has a reasonable suspicion that he has contracted the infection in the workplace or in another place designated for work (including remote work) may file a claim for compensation with his employer. He has 2 months from the end of the isolation or hospitalisation to do so.
• The compensation is to be paid by the employee who did not submit to the test despite the employer's request and with whom the infected employee was in contact. The verification of these persons is on the employer's side, and they are indicated by the infected employee.
• If among those persons there are persons who did not submit to the test, the employer passes the case to the provincial governor, and the provincial governor imposes on these persons the obligation to pay the compensation of 15050 PLN (if there is more than one person - they pay the compensation in equal parts) for the benefit of the infected person. The decision can be appealed to court.
• The draft does not provide for the necessity of proving infection from a given person - the premise of liability is failure to undergo the test (and more precisely - also refusal to disclose the result).
• If the employer does not request information about the test results from the employees, the employer will pay the compensation.
• Analogous compensation can be claimed by the employer from the employee who did not submit to the test despite the demand, if there were infected persons among the persons in contact with him. An additional condition - the infected employees must have significantly impeded the employer's operations.

Preliminary assessment:

• We have strong doubts about the constitutionality of indemnification liability of other employees and even the employer itself.
• The draft even compels employers to test employees and others to avoid liability.
• There are additional administrative burdens on the employer.
• The one-week period between tests does not create any real safety barrier. 
• The solution does not realistically increase the safety of employees and the employer. 
• There will be additional burdens on the employers' side to obtain and verify test results. 
• The testing system is currently not adapted to the millions of tests to be performed each week (there are over 16 million workers in Poland), which means no real possibility of performing tests.
• No such number of tests are currently available in Poland.
• The solution does not promote vaccination as a viable form of reducing the risk of loss of life or health from contracting the disease and reducing the impact of COVID-19 on employers.
• Vaccinated persons may also be liable for damages.
• Possibility of manipulation in terms of persons in contact with a person who has not taken the test.
• The draft contains a number of vague terms that hinder the reality of the solutions implemented.

Do you have questions? Contact the author.
Łukasz Kuczkowski