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Mandatory PCR Testing or Mandatory Vaccination in the company:
Can a company require its employees to undergo PCR and/or serological tests to verify their health status?
employment lawyer in Barcelona
In our view, the answer is, in principle, YES. A company may require employees to undergo PCR and/or serological tests, specifically those returning to in-person work, and under certain circumstances.
Following the reasoning set out in the ruling of the Supreme Court, dated 21 January 2019 (Appeal no. 4009/2016), the Court established the following:
a) As a general rule, medical examinations in the workplace are voluntary for employees. This is set out in Article 22 of the Occupational Risk Prevention Act (Ley de Prevención de Riesgos Laborales).
b) However, that same provision provides an exception to the principle of voluntariness: testing may be made compulsory where it is necessary «to verify whether an employee's state of health may pose a risk to themselves, to fellow workers, or to other persons connected with the company».
It should be noted that this ruling concerned the introduction of mandatory medical examinations for drivers employed by the State Motor Fleet. A driver is responsible not only for their own safety, but also for that of the passengers they transport. Accordingly, verifying that a driver is in an optimal state of health to carry out their duties is considered essential to ensuring the protection of those travelling in the vehicles.
On this basis, the exception to voluntariness is established by reference to the Occupational Risk Prevention Act (LPRL), which provides in Article 14 that "the employer must guarantee the safety and health of workers in their service and shall take all necessary measures to that end", with prevention as the primary objective. A PCR or serological test is a clearly preventive measure, designed to "verify whether an employee's state of health may pose a risk to themselves, to fellow workers, or to other persons connected with the company", as set out in Article 22 of the LPRL. On the same basis, Article 29 of that Act also imposes obligations on employees in respect of risk prevention. Specifically, it states that "it is the responsibility of each employee to take care of their own safety and health at work and that of any other persons who may be affected by their professional activity, by reason of their acts or omissions at work, in accordance with their training and the instructions given by the employer".
In this regard, the Supreme Court has previously held that "the right of the affected employee to refuse testing yields and ends where the serious risk to the life, physical integrity, and health of third parties begins, third parties who cannot be expected to bear the consequences of a reluctant employee's unwillingness."
Therefore, in the context of the current health crisis, at a time when we are in the midst of a "third wave", and given the need to implement certain measures and prevent the spread of the virus, employers are entitled to carry out health tests on their workers when they return to work, in order to verify whether an individual's physical condition may pose a risk to their colleagues.
Several companies have already adopted this approach, including SEAT, which required PCR tests and other screening for employees at its Martorell plant when they returned to work following a suspension of approximately six weeks under a Temporary Layoff Procedure (ERTE), as well as for other staff returning to on-site working on an ongoing basis.
Like the automotive manufacturer, many companies are incorporating testing, including PCR and other screening methods, into their workplace protocols, in order to ensure that employees return to work under the best possible health conditions for all staff. This is consistent with the World Health Organisation's (WHO) recent recommendations regarding the need for such tests as a means of combating the pandemic as quickly as possible.
Accordingly, YES, employers may carry out PCR tests or serological tests they consider essential, provided that employee privacy is protected and that appropriate protocols and methodologies are in place.
It is important to note that these measures must be absolutely "necessary" to guarantee workplace safety (it is not sufficient that they are merely "convenient, advisable, or useful"), and that, at present, such tests represent the only available procedure for assessing health risks affecting the employee.
In summary:
- The company IS entitled to know whether a worker is infected, for the purpose of enabling its health and safety service to design the necessary contingency plans.
- However, being authorised to process such data does not mean the company may use it in any way it sees fit. Any processing remains subject to all applicable data protection legislation: the aforementioned GDPR 2016/679, Organic Law 3/2018 on the Protection of Personal Data and Guarantee of Digital Rights, and any other relevant or related regulations.
Can an employee refuse to take a PCR test upon returning to work?
Just as the company has an obligation to safeguard its employees' health, employees are themselves subject to a number of requirements, including:
- "Each employee is responsible for looking after their own health and safety at work, as well as that of anyone else who may be affected by their professional activities, through their acts or omissions at work, in accordance with their training and the instructions of the employer."
- "To contribute to compliance with the obligations set by the competent authority for the purpose of protecting safety, and to cooperate with the employer so that the employer can ensure working conditions that do not pose risks to the workforce."
In such cases, this would constitute one of the exceptions to the general principle of voluntary participation established in Article 22 of the Occupational Risk Prevention Act.
This requirement clearly includes taking preventive tests. Should an employee refuse without justification, such conduct may be treated as a breach of employment obligations or a disciplinary offence under the Workers' Statute and the Occupational Risk Prevention Act, and the appropriate sanction may be applied.
Can the company dismiss an employee who refuses to take a PCR or serological test for COVID-19?
Based on the above, and drawing on our experience as employment lawyers and specialist dismissal lawyers, we believe that a company is entitled to take disciplinary action, up to and including dismissal, if an employee refuses to undergo a PCR or serological test, given the obligations that every company is required to fulfil as outlined above.
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Can the company compel employees to get vaccinated?
Under current legislation, the answer is no. A company cannot legally require its employees to be vaccinated against Covid.
In Spain, vaccination in the workplace is addressed solely in Article 8.3 and Annex VI of Royal Decree 664/1997 on the protection of workers against risks related to exposure to biological agents.
These provisions establish that where a workplace risk assessment identifies a risk of exposure to biological agents for which effective vaccines exist, employers must make those vaccines available to their employees, informing them of the advantages and disadvantages of vaccination. Both the offer of the measure and the employee's acceptance must be recorded in writing.
It should be noted that this regulation applies strictly to specific staff and groups within the healthcare and life-sciences sector (doctors, nurses and laboratory technicians), and vaccination is always VOLUNTARY. There is no legally enforceable obligation. In these cases, the company has a duty to offer the vaccine, but it is the employee who decides whether or not to be vaccinated.
That said, the answer would be different if the Ministry of Health or another authority were to publish a regulation aimed at administering the vaccine to the population at large or to specific categories of workers, for instance, under the Organic Law on Special Public Health Measures or equivalent legislation, citing grounds of urgency and necessity, as occurred with the National Health Act of 1944, which made vaccination against smallpox compulsory for the entire population.
In such a scenario, employees would not be able to refuse vaccination, with the collective interest taking precedence over the individual, the obligation being grounded in a statutory provision.
Can the company dismiss an employee for refusing to be vaccinated?
Based on the above, an employee's refusal to take a PCR test may be treated as a breach of duty, potentially warranting the most serious sanction available, namely, dismissal. This could apply where an employee repeatedly refuses to undergo PCR or other tests upon returning to work. However, a refusal to be vaccinated is a different matter: as noted above, vaccination is not currently mandatory.
WHAT GROUNDS FOR dismissal CAN THE company RELY ON?
The Workers' Statute leaves it to collective bargaining agreements to set out the types of conduct that may constitute a disciplinary offence and the procedures to be followed. That said, the Statute does specify the grounds that may give rise to disciplinary dismissal, which, in the context of this question, could include:
- Insubordination or disobedience in the workplace
- Breach of good faith in the contractual relationship, as well as abuse of trust in the performance of duties
In some conflict situations, "verbal or physical offences against the employer, fellow workers within the company, or their cohabiting family members" may also arise, for instance, as a result of an employee's refusal to undergo testing and any offensive conduct that may occur in that context or subsequently.
It is also worth noting that several collective bargaining agreements classify the following as a very serious offence: "Disobeying the employer's instructions".
In all such cases, the principle of proportionality applies, subject to the exceptions and qualifications established by the Supreme Court in its extensive case law, taking into account the specific circumstances, including, among other factors, the employee's role and responsibilities, as well as compliance with certain procedural requirements.
FORMAL REQUIREMENTS FOR THE dismissal letter IN CASES OF REFUSAL TO VACCINATE OR UNDERGO PCR TESTING:
It should be noted that the dismissal letter must comply with the necessary formal requirements. Employment legislation requires that the dismissal letter include a minimum level of detail enabling the employee to understand clearly and unambiguously the reasons that have led the company to decide to terminate their employment contract, specifying the type of dismissal and the facts substantiating the stated grounds.
It is essential that the dismissal letter be drawn up in writing and served on the employee by a means of communication that provides reliable proof of receipt or delivery. We therefore strongly advise against using email or WhatsApp to serve a dismissal letter.
It should be noted that, at the time of serving the dismissal letter, the employer is not required to prove the facts set out in it. Such proof will be examined before the employment tribunal judge in the event that the employee challenges the dismissal.
In any case, once the dismissal has been formalised, the specific circumstances of each case must be assessed in order to determine whether the dismissal is fair, unfair, or null and void.
As noted above, the particular facts must be carefully examined to determine whether all procedural requirements have been met, with the burden of proof ultimately resting on the company to demonstrate this before the employment tribunal judge, should the employee bring a challenge against the dismissal.
In this connection, it is worth highlighting the ruling of the High Court of Justice of Galicia, Social Chamber, ruling of 17 October 2019, Appeal No. 3241/2019, which upheld the fairness of the dismissal.
The first-instance judge (whose decision was subsequently upheld by the High Court of Justice (TSJ)) rejected any finding of null and void dismissal or unfair dismissal, precisely because of the employee's persistent refusal to cooperate. The company arranged the appointment for the employee's medical examination on no fewer than five separate occasions, and he failed to attend any of them. He justified the first two, scheduled in August, on the grounds that he was on annual leave; he cited sick leave for the third; and for the final two he claimed the dates did not suit his schedule, even though the last appointment had been proposed by the employee himself.
The court made clear that the company had acted with considerable patience and tolerance throughout. However, a company cannot leave compliance with its occupational health and safety obligations, for which it bears legal responsibility, in the hands of a single employee, particularly where, as in this case, that failure put contracts with other companies at risk, and where the employee's health condition posed a potential danger both to himself and to his colleagues.
In this case, the most severe sanction, dismissal, was found to be justified, as an exception to the general principle of voluntariness outlined above. This is because the employer's need to carry out the tests required "to verify whether the employee's state of health may constitute a risk to himself, to other workers, or to other persons connected with the company" was clearly established, and the facts recorded in the dismissal letter were sufficiently serious and significant to warrant it.
As set out in the Fourth Legal Ground of the aforementioned ruling of the High Court of Justice (TSJ) of Galicia:
"It is within the courts' power to assess whether conduct has been correctly classified (as a minor, serious or very serious offence), but once the classification is established as correct, it is the employer's prerogative to choose the sanction from those available under the applicable collective agreement. Accordingly, the classification of the offence as very serious is correct, and it falls to the employer to choose from the available sanctions (in this case, suspension of employment and pay for between 10 and 60 days, or dismissal), which is precisely what was done."
"…furthermore, as the company notes, the employee's conduct would also fall within the scope of breach of contractual good faith…"
"We reiterate that we are faced with serious and culpable conduct that also constitutes a breach of the duty of contractual good faith. In this regard, we refer to the statement of proven facts, given that the claimant, despite being obliged to undergo a medical examination, evaded doing so on two occasions without providing any justification for his absence…"
In light of such repeated insubordination and breach of discipline, there is no alternative but to declare the dismissal entirely justified.
In other cases, pursuant to the facts set out in the dismissal letter (on the principle that "what is not in the letter does not exist") and whether those facts are substantiated before the courts, it may be determined that the dismissal was unfair (or even null and void, which we will address in a separate article). Each case must be assessed on its own merits, since it will be difficult to uphold a dismissal on grounds of non-compliance, for example, with requirements to undergo PCR tests, serological tests or other analyses, where the employees in question are working remotely and have no imminent return to the workplace scheduled, with no contact with other people.
It should also be noted that, in the current climate of some legal uncertainty and while awaiting pronouncements from the Supreme Court, a number of judges, without declaring the dismissal null and void, have found unfair dismissal in several cases and ordered the payment of damages that may, in certain instances, substantially exceed the amounts that would otherwise be payable upon dismissal.
By way of conclusion, it is possible for the employer to proceed with disciplinary dismissal of the employee for refusing to undergo certain tests, subject to the specific considerations outlined above.
If you have any questions, please do not hesitate to contact us.
