Employers are increasingly considering rewarding employees for vaccination against SARS-COVID-19. From the employer’s point of view, such a solution brings specific business benefits. First of all, in the field of preventing sickness absenteeism of employees.
At the moment, there are no direct legal regulations in this regard. There are some discussions to empower the employers to have access to vaccination data and specific powers to differentiate between vaccinated and unvaccinated personnel. As of today, however, these are more political plans, no specific legal solutions have been passed.
It is worth referring to the regulations of the Labor Code. Its art. 18(3a) statues the so-called the principle of non-discrimination. It indicates, in particular, that employees should be treated equally as regards entering into and terminating an employment relationship, employment conditions, promotion and access to training in order to improve professional qualifications, in particular, regardless of sex, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, religion, sexual orientation, employment for a fixed or indefinite period, full-time or part-time employment.
At the moment, there is no doubt that it would be discriminatory to take away the “normal” statutory bonuses due to the lack of vaccination.
In our opinion, however, such action (granting bonuses) should be considered acceptable. This is because it is in the interest of protecting the health of the employees, where each one has the opportunity to be vaccinated and receive benefits. In practice, real discrimination here could only occur against people who have health contraindications for vaccination.
According to press publications, the inspectors of the National Labor Inspectorate do not question the additional bonuses in this respect, but this does not exclude the possibility of taking legal action by an unvaccinated employee claiming discrimination. Another possibility is that the Inspectorate will change its position.
Incidentally, it is worth pointing out that in order to introduce such an additional benefit, it would in practice be necessary to change the remuneration regulations and introduce a new benefit.
Importantly – from the point of view of the provisions on the protection of personal data (GDPR) – the provision of vaccination data by employees in order to obtain a prize must be voluntary, and the processing of information about vaccination must be preceded by the employee’s written consent to such action by the employer and providing him with an information clause in this regard. Data on vaccination are sensitive data within the meaning of the GDPR, so it is necessary to be meticulous in meeting the requirements for their processing.