COVID-19 vaccination and testing in Hungary - employment law perspective

The employer can raise awareness and inform its employees of the benefits of a COVID-19 vaccination. It can also encourage vaccinations among staff by allowing inoculations during working hours and recording the time spent doing so as working time.

However, an employer cannot provide a financial incentive to employees. It cannot treat employees who do not wish to be vaccinated differently than those that do, since this could be considered health–related discrimination.

Under the relevant Hungarian legislation, employers are not obliged to offer their employees the opportunity to be vaccinated against COVID-19.

Nor is the employer obliged to support third parties or governmental institutions providing vaccines to employees. However, an employer can voluntarily offer vaccines to employees or support third parties or governmental institutions providing vaccines to employees.

In Hungary, employers are entitled to process information on the vaccination of employees in line with the relevant guidance from the NAIH, Hungary’s data protection authority. 

The NAIH’s guidance on how employers can lawfully determine whether an employee is protected against COVID-19 contains the following requirements:

• For certain occupations or employees, it may be a necessary and proportionate for the employer to know whether the employee is protected against COVID-19 in line with labour law, occupational health and safety, and the work organisation. 
• An employer can only ask employees to present their vaccination certificate (Coronavirus Protection Certificate – in Hungarian: “védettségi igazolvány”) and the application for a Coronavirus vaccination. (The NAIH’s guidance was issued before the issuance of the EU Digital COVID Certificate. Hence, employers should be able to ask for the presentation of this certificate as well.) The employer cannot make copies of the above, store them in any form and manner, or transfer them on to third parties. The employer can only record that the employee is certified as protected against COVID-19 and can record how long this protection will last. This permitted scope of data processing is expressly set out in the NAIH’s guidance, and it does not include how many vaccines the employee received, and the type of the vaccine. However, the EU Digital COVID Certificate contains such data, so an employer may process this data if it can properly justify its necessity under labour law, occupational health and safety, and work organisation purposes. 
• The employer must prepare a privacy notice and a data protection impact assessment for employees on the processing of their vaccinations status. The data protection impact assessment should include an objective risk assessment on a job-by-job or employee-by-employee basis with the guiding principles of safeguarding the life and health of protected workers, other workers, and third parties (i.e. customers), and being in full compliance with their obligations. 
• The purpose of processing vaccination status should only be to take the necessary measures to comply with labour, occupational health and safety, and work organisation rules, and to have a clear understanding whether workers are protected against COVID-19. Based on this information, the employer should implement concrete measures to protect workers and other third parties with whom they come in contact. These measures could include ordering telework for unprotected workers or placing an unprotected employee's workstation next to a protected employee's workstation. The range of data processed must be suitable for the purpose of creating a safe working environment.
• In the case of certain low-risk jobs (e.g. permanent teleworking), it may not be necessarily to process this data. However, such data processing may be necessary if the employee’s activity includes onsite working and where proof of protection would be required to perform professional duties.

Similar to our comments in Point 3 above, depending on the nature of work and the specific attributes of a given workplace, and where work cannot be performed from home, employees may be obliged to provide this information.

No, employers cannot make vaccination against COVID-19 compulsory. As a result, having a vaccination cannot be a condition of employment. The only exception to this rule is the health sector, where being vaccinated is currently a prerequisite of employment.

In Hungary, the general rule is that the employer cannot require employees to undergo any vaccinations. However, a directive is released each calendar year by the national medical chief officer, which details recommendations for the vaccinations of employees employed in specific job profiles. There is no such recommendation at the moment for COVID-19 vaccinations.

If an employee refuses the vaccination, testing of these employees can be an alternative for admission to the workplace. However, the costs of such tests must be borne by the employer, since, under the relevant law, the employer is obliged to provide a healthy and safe workplace for employees.

Yes, employees can refuse to be vaccinated since, as a main rule, there is no current obligation for employees to be vaccinated against COVID-19.

Currently, an employee is not legally obliged to give a reason for refusal to be vaccinated. 

Should the employee refuse to take the vaccine, the employer should prescribe stricter health and safety rules (e.g. wearing extra protective equipment, introducing stricter rules on social distancing, etc.). The fact, however, that the employee refuses to be vaccinated cannot serve as grounds for ordering the employee to perform duties by telework. To provide a health and safe workplace, it is also possible to make two categories of employees and to prescribe different preventive measures to them (e.g. wearing masks, etc.). The employer must seek solutions to properly separate the two groups of employees in order to avoid the spread of COVID-19 in the workplace. 

Contrary to the above, the employment relationship with employees working in healthcare, who refuse vaccinations, may be terminated based on this ground.

An employer cannot forbid unvaccinated employees from entering the workplace. This could be a violation of the requirement of equal treatment.

Of course, if an employee is manifestly ill and shows symptoms that may indicate an infection, the employer must take all necessary measures, including sending the employee home and recommending that the employee's personal doctor or the occupational health doctor be consulted immediately.

Further steps will be decided based on the relevant opinion of and measures taken by the employee's doctor or the occupational health doctor.

To provide health and safety in the workplace, it is possible to make two categories of employees and to prescribe different preventive measures to them (e.g. wearing masks, etc.). The employer must also seek solutions to properly separate the two groups of employees in order to avoid the spread of COVID-19 in the workplace. 

In Hungary, only the employer can be held liable for not implementing the necessary level of preventive measures to hinder the spread of COVID-19, since employers have the responsibility of providing health and safety in the workplace. Each employer is liable for his employees, and not the landlord who has no health and safety obligation towards these workers. . 

Under a typical lease agreement, the tenant (including its employees and visitors) has a right to access the leased premises during regular business hours. The landlord has no contractual basis to prescribe such bans, unless there is a specific statutory mandate.

Yes, the means of requesting vaccination status can be differentiated between employees and third parties, if providing health and safety at the workplace makes such differentiation possible or necessary. The employer, however, must examine this on a case-by-case basis taking into account, in particular, the nature of the job profiles, the activity of the employer, and the specifics of the employer's premises (e.g. the accessibility of the site for visitors, the ability to separate groups of people, etc.). 

Hungary has fully implemented EU DCC. Thus EU/EAA citizens may enter Hungary without any restrictions by presenting EU Digital Certificates.

The EU DCC is also available in paper form and electronically via an app. There is no obstacle to the employee fulfilling his/her obligation to inform the employer of his/her vaccination status by presenting the EU DCC. However, this is not common practice in Hungary, employees rather tend to prove to the employer that they have been vaccinated by presenting the immunity card or the medical certificate received at the time of vaccination. 

In addition, Hungary accepts all types of vaccines currently available on the global market

Yes, the organiser of an external event may request data on the vaccination status of participants, both by requiring a digital pass/app or an 'immunity certificate' (in Hungarian: “védettségi igazolvány”).  

Business travel from specific countries as prescribed by law (e.g. EU/EEA, UK, Ireland, Switzerland, China, Russia, Japan, India and others) into Hungary is possible without restrictions (i.e. without entering quarantine) if the traveller can credibly certify that the visit is for business purposes.

If there is no business purpose for the trip, the traveller must enter quarantine for ten days upon entry into Hungary. However, if the traveller can provide two separate negative PCR tests within a five–day period, where the two tests are at least 48 hours apart, the individual may be exempted from the above quarantine obligation. The relevant law also prescribes some countries, from which Hungarian authorities will accept the first PCR test (i.e. one of the two made before entry into Hungary).

Yes, the employer may assign employees to participate in business trips. However, the liability for health and safety still remains with the employer in the case of such trips. 

For unvaccinated employees, the cost of testing related to business trips will always be borne by the employer, since, as a general labour law rule, the employer must bear all costs that necessarily arise in connection with the work performance of the employee in question. 

The Hungarian parliament will soon decide on maintaining or lifting the state of emergency in Hungary. 

Regardless of the above, based on the high vaccination rate of the population as well as the decreasing number of the COVID-19 cases in Hungary, the government is unlikely to introduce additional restrictive measures in the near future.  

According to current Hungarian legislation, employers may oblige employees to take COVID-19 tests, but only with limitations.

Under Hungarian labour law, providing a healthy and safe workplace is the obligation of the employer. If providing a healthy and safe workplace, assessed on a case–by–case basis, requires a COVID-19 test, the employer can require this test.

An employer can decide how COVID-19 testing will be offered to workers. Although there is no statutory obligation to provide workplace COVID-19 tests, the employer can decide to arrange testing onsite.

An occupational health doctor may require that employees undergo COVID-19 tests at any time if the doctor considers it necessary to prevent further spread of the virus in the company. 

Testing may be ordered on a regular basis according to whatever schedule the employer considers essential to ensure health and safety in the workplace. The relevant law does not prescribe an exact number of tests. The necessity of testing should be decided on a case-by-case basis. However, systematic testing cannot be abusive and cannot indirectly force an employee to become vaccinated.  

The employee has no legal obligation to share the outcome of a positive COVID-19 test with the employer. However, in case of a positive COVID-19 test result, the employee is obliged to stay at home in quarantine, according to measures prescribed by the relevant law.

Since systematic testing of employees for infection or immunity to COVID-19 is not allowed in Hungary, testing cannot become a mandatory condition for employment.

No, an employer cannot assign different duties to unvaccinated employees.

This would only be possible upon the agreement of the parties (i.e. with the consent of the employee in question).