The opinion of the Labour Department (number 167/01 dated 27 January 2022) states that the employer must provide authorisation for employees to leave work, during their working hours, to go and take an antigen test for SARS-coV-2, if the employees fall under any of the designated ‘person on Covid alert’ hypotheses, as determined by the Ministry of Health.
This is based on the general and permanent duty that the employer must fulfil to protect the life and health of its employees according to the provisions in Article 184 of the Labour Code; and any refusal to provide such authorisation would constitute an infringement of the applicable rule.
The judgement clarifies that, since the law does not specifically regulate this issue, the parties must follow what is set forth in the company’s Internal Regulations for Order, Hygiene and Safety, or in the individual or collective agreement, or in any other instrument where it is regulated. If it is not regulated, the parties must agree upon the manner, time and conditions under which, the authorisation will be granted, by virtue of their contractual autonomy, without this effectively becoming an obstacle to taking the test.
In the event that the parties are unable to reach an agreement, the employee may also go for the aforementioned medical examination, as long as he/she can produce evidence that they have undergone the SARS-CoV-2 antigen testing, with the corresponding voucher.
The relevance of this interpretation of the rule is that going for the antigen test without the employer’s authorisation could not be considered, by the employer, as an “unjustified or untimely departure or as an abandonment of work by the employee” and therefore, terminating the employment contract for cause, based on this absence, would not be in accordance with the law.
Key Action Points for Human Resources and In-house Counsel
The employer cannot refuse to provide such authorisation to its employees to take the antigen test for SARS-coV-2, if the employees fall under any of the designated ‘person on Covid alert’ hypotheses, as determined by the Ministry of Health.