Measures against Covid-19: scope of the employer's obligations and consequences of non-compliance by employees
Published on 25th Oct 2021
Following the declaration of the state of alarm in March 2020, the Spanish Government has published numerous regulations on occupational risk prevention, as well as action protocols for the protection of health in the workplace and guidelines for good practice in workplaces. The return to face-to-face work has been resumed progressively, which has forced employers to comply with the "Covid regulations" in force at all times, adopting certain measures for public safety and occupational risk prevention and hygiene.
The measures adopted by the companies are the result of the obligations imposed by state and regional regulations. In application of these regulations, many companies have adopted the following preventive measures, among others: (i) making available to their employees necessary hygiene products, such as water and soap or hydroalcoholic gels; (ii) providing masks; (iii) minimizing contact between employees, through the distribution of spaces, guaranteeing safety distance, for example, through the use of physical barriers (screens, windows, intercoms...); and (iv) ensuring adequate ventilation, cleaning and disinfection.
These measures are mandatory for the entire workforce, so that non-compliance by employees can lead to the imposition of disciplinary sanctions, to such an extent that in some cases these breaches have been classified as very serious misconduct, punishable by dismissal. Thus, for example, in the case of the Judgment of the High Court of Justice of Galicia, number 2005/2021 of 14 May, an employee was dismissed on 24 April 2020 for not wearing a mask in the workplace. The Court declared the dismissal unjustified because, at the date of dismissal, there were no state or regional regulations imposing the mandatory use of the mask, since Order SND/422/2020 regulating the conditions for the mandatory use of the mask was dated May 19. On the other hand, in the Sentence of the High Court of Justice of Cantabria number 338/2021 of May 11, the Court declared fair the dismissal of an employee, occurred on June 18, 2020, as it was a serious breach of the rules on the use of the mask, developed by the service of prevention of occupational hazards, as well as the recommendations of the Ministry of Health in the context of Covid-19.
Another measure implemented by many companies has been to carry out virus detection tests, PCR or antigen tests. However, we may wonder if these tests are mandatory for employees, or if, on the contrary, they can refuse to take them. In this regard, article 14.2 of Law 31/1997, of November 8, 1997, on the Prevention of Occupational Risks (hereinafter "LPRL") establishes that the employer has the obligation to ensure the safety and health of its employees against occupational hazards. However, article 22.1 of the same legal text provides that the employer must obtain the consent of the worker in order to carry out medical tests on his employees, except in the following 2 cases:
- In those cases in which the carrying out of the tests is essential to evaluate the effects of the working conditions on the health of the employees or to verify if the state of health of the employee can constitute a danger for the employee, for the other employees or for other persons related to the company; or
- When provided for in a legal provision in relation to the protection of specific risks and particularly hazardous activities.
Well, in the case of carrying out PCR tests or antigen tests, and due to the situation generated by the Covid-19, employers must have as a priority the prevention of the spread of the virus. Therefore, the consent of the employee will not be necessary for the realization for such medical tests, since the objective is to verify if they are infected by the virus, and, thus, their work performance may constitute a danger to themselves, to other staff or to other employees working for the company, being a measure covered by article 22.1 of the LPRL.
On the other hand, the question arises whether testing for Covid-19 is an obligation for the employer. The Supreme Court has ruled in this regard in its judgment of 20 May 2021 (Rec. 562/2021), in which it rejects that it is possible to require companies to carry out PCR tests on their employees. The ruling resolves the lawsuit filed by the union representatives of a company awarded the transport and emergency health care service for the Basque Country´s emergency transport network against the company, alleging that it was obliged to carry out rapid tests or PCR tests for the duration of the pandemic caused by the Covid-19, on employees with the category of medical transport technician and medical transport technician driver who have been in contact with patients infected with Covid-19.
After an analysis of the regulations issued after the declaration of the state of alarm, and in the absence of medical indication, the Supreme Court does not see any obligation for the company to carry out tests for the detection of Covid-19 on its employees. Likewise, the Court points out that this obligation is not covered by Law 2/2021, of 29 March on urgent measures of prevention, containment and coordination to deal with the health crisis caused by Covid-19.
In short, when it comes to establishing preventive measures against Covid-19, companies must observe the regulations in force at state and regional level in this respect in order to identify, on the one hand, the scope of their obligations in terms of prevention and, on the other, the consequences of non-compliance by employees.
