At present there are no regulations in force in Poland allowing an employer to ask employees on whether they are vaccinated against COVID-19. Asking about vaccination is legally permissible solely in a handful of situations. Nor can an employer apply any negative consequences against unvaccinated employees, e.g. moving them to a different position or modifying their scope of duties. However, an employer may undertake measures to encourage employees to get vaccinated and phase in various types of benefits. Even so, employers should keep in mind the principle of equal treatment and non-discrimination of employees. 

Asking employees whether they have been vaccinated, compiling the related data and differentiating the status of these employees depending on the responses obtained produce various legal risks. This is the reason firms make the decision not to ask but to use every possible way to encourage employees to get vaccinated. Some of them elect to phase in additional benefits for people who have been vaccinated. These benefits include the following: a one-off bonus for vaccinated employees, a day off work to get vaccinated or a larger number of days of remote work for those who have been vaccinated. We can find the legal grounds for introducing these benefits in Article 207 § 2 of the Labor Code.

According to this regulation, an employer is obligated to protect the lives and health of its employees and organize work in a manner that provides for safe and healthy working conditions. Therefore, an employer who is striving to fulfill this obligation may encourage employees to undergo vaccination so as to protect its staff against the transmission of the virus. However, special attention should be given to ensuring that the principle of equal treatment and non-discrimination of employees is not violated when rolling out these benefits. For this reason, every benefit should be checked in this regards when being introduced. It is also important for all the requirements concerning personal data protection to be satisfied when applying these benefits.
 

Bonus for vaccination

Employee absences generate genuine costs for employers. Having them in mind, employers are adding an additional component of remuneration, namely a one-off bonus for getting vaccinated. For research has demonstrated that vaccinated employees are less susceptible to falling ill, and therefore this considerably reduces the probability of the virus being transmitted to other employees or that they have a lighter COVID-19 illness. Thus vaccination truly contributes to reducing the number of medical absences an employer faces or a shorter duration thereof.

That is why employers allocate PLN 100, PLN 500 or even PLN 1,000 to be payable on a one-off basis to fully vaccinated employees. Some employers discontinue the bonus they have in place for lack of absences and replace it with a vaccination bonus. State Labor Inspectors have not challenged the implementation of this benefit. However, they do emphasize that employers must reckon with the risk of litigation for discrimination against an unvaccinated employee. The labor court will determine whether discrimination has occurred as a result of introducing this bonus by assessing all the circumstances of a given case. The State Labor Inspection Service does not have the authority to make any decisions in these cases. Therefore, one cannot issue a ban, for instance, against the payment of such a bonus or ordering that the bonus also be paid to unvaccinated employees. 
 

Day off work to get vaccinated 

Employers readily offer additional days off work for vaccination. As a rule, these days can be used on the day of vaccination or over a period of 2-3 days after receiving the vaccination. Their purpose is to give an employee the opportunity to recover following vaccination, not to have additional rest. This benefit, having regard for its purpose, should be available following every vaccination, also if full vaccination requires the delivery of two doses of a vaccination or a booster vaccination. It is also important for an employee to be able to obtain this benefit for a longer pre-defined period, and not just in a given month, for instance. It is safe to introduce it in this manner even if the employer is keen on employees getting vaccinated as quickly as possible. For it is important not to deprive those persons of time off if they cannot receive the vaccination in a given period on account of objective or health reasons (e.g. if they have a cold) or if they simply need some time to make that decision. If those are the conditions for using this benefit, its implementation will not generate a material risk in terms of inequal treatment or discrimination. 
 

Separate offices for vaccinated and unvaccinated employees

Some employers who would like to provide better conditions of work safety and prevent viral transmission organize two types of office space: separate space for vaccinated people and separate space for people who have not undergone vaccination. However, they do not wish to treat vaccinated and unvaccinated persons differently in terms of their place of work or working conditions. Therefore they ask their employees if they are vaccinated and - depending on the response - they direct them to various spots in the work establishment but where these spots offer the same working conditions and comfort. Vaccinated people do their work in offices occupied by other vaccinated people. Unvaccinated people, in turn, work only among themselves. Both of these groups may work with one another by using remote connections.

Of course, all employees must have access to the very same type of employee social space (locker rooms, canteens, game or recreation rooms) if such space is offered in a given work establishment. This approach generates a host of legal risks. It also raises many organizational challenges, especially in terms of personal data. One must also remember that even if this is implemented in a legally permissible manner, this frequently prompts social objections among the unvaccinated. They customarily speak of segregation or differentiation, and that is the first step on the path to litigation. One should remember that employees can demand damages on account of discrimination or inequal treatment and their upper limit is not specified in the regulations. For this reason, introducing this solution is something that has to be very well-thought through.
 

Additional days of remote work

Many employers expected that their employees would return to the office in September of 2021. As a rule, work is organized for 2 days a week in the office and for 3 days a week at home or vice versa. Research shows that employees are not eager to return to the office. They would like to do more remote work. That is why some employers are giving consideration to introducing remote work for more working days but only for vaccinated persons. Such a benefit, however, produces a genuine risk of violating the principle of equal treatment and non-discrimination. For it would be difficult to argue that an employer is differentiating the situation of employees having in mind objective causes, i.e. providing safe and healthy working conditions in the organization of work for all of them. If that were the case, one should rather offer remote work to unvaccinated people. For they are more susceptible to falling ill when they commute to the office and work there. The purpose of this benefit is rather to reward vaccinated employees for being vaccinated and not putting them in jeopardy of falling ill as a type of an award for having shown care for their own safety and the safety of others. It therefore appears that at present it is not legally permissible to offer this benefit, although one may most assuredly look for opposing arguments depending on the circumstances of a given case.