The COVID-19 pandemic has taken its toll on Poland, as it has on other European countries. In April, Poland recorded by far the biggest number of COVID-19 fatalities since the onset of the pandemic in March of last year. Consequently, most of the government’s plans to reform healthcare/pharmaceutical legislation have been either frozen or postponed. Most recent legislation has been aimed at legalizing the lockdown or enacting other pandemic measures, such as social distancing and mask-wearing in public spaces, as well as speeding up the vaccination rollout across the country. However, these new laws were essentially technical adjustments to the current framework, rather than revolutionary changes.
As a result of recent updates to the Act of September 6, 2001 on Infectious Diseases and Infections, pharmacists (and a few other healthcare professions, including laboratory diagnostics specialists and medical students) are allowed to train for and administer COVID-19 vaccinations. Strikingly, the Polish government has decided not to add vaccinations against COVID-19 to the statutory list of recommended vaccinations, despite the ongoing public vaccination program. This decision has many practical and legal implications for businesses in different sectors.
Lack of Detailed Regulations on COVID-19 Vaccinations
The Polish Act of September 6, 2001 on Infectious Diseases and Infections provides for both compulsory and recommended vaccinations against various diseases. Citizens are required to be vaccinated against certain diseases; other vaccinations financed by the state are simply recommended, but are not mandatory. The third group of vaccinations consists of those which are neither compulsory nor recommended, and as such are not financed by the state. The fourth group of vaccinations consists of those required for workers exposed to biological pathogens. These vaccinations are carried out and required for the performance of professional activities as defined in a special regulation referred to in Article 20 of this statute and are financed by employers.
Nevertheless, vaccinations against COVID-19 were not included in any of the compulsory vaccination lists, although they are funded by the public budget. This has led to a situation where doctors and chefs are required to be vaccinated against hepatitis, but they are not obliged to be vaccinated against COVID-19 – in the middle of the pandemic. At the same time, refusal of compulsory vaccinations constitutes a petty offense, which is penalized by fines of up to EUR 320, and the fine may be imposed several times.
Legal Implications for Businesses and the Healthcare Sector
Therefore, under current law, employers cannot order their employees to be vaccinated against COVID-19, ask them to provide any information about whether they have been vaccinated against COVID-19, or inform employees who have had professional interaction with the infected employee about their illness (if they voluntarily inform the employer about their illness and consent to other employees being informed).
Violations of these rules (just like, for example, refusing to enter into an employment contract with an unvaccinated person) may expose an employer to liability for damages under anti-discrimination or personal data protection laws. This may have severe consequences for both employers and employees, especially in businesses where the employees’ daily responsibilities involve frequent social interaction. On the other hand, employers are obliged to ensure that employees have a safe and healthy work environment and to inform employees about the preventive health and safety measures in place. In the event that an employer’s failure to do so would result in damage to an employee’s health as a result of contracting an infectious disease, including SARS-CoV-2, this could make the employer liable for damages suffered by the employee.
In recent weeks, the government has rolled out a national program for employers which allows them to organize vaccinations against COVID-19 in workplaces. However, the program is voluntary for both employers and employees. Apart from organizing vaccinations financed by the state in the selected workplace or public clinic, it does not give employers any additional leverage.
By Anna Mirek, Head of Life Sciences and IP, Noerr Poland