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

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

However, an employer cannot provide a financial incentive to employees, nor treat employees who do not wish to be vaccinated differently than those that do, since this could be considered health-related discrimination. 

There is no obligation for employers to offer vaccines, to support the vaccination programme of the government or to promote vaccinations. Due to the fact that vaccines are offered for free to all citizens of Montenegro (solely) by the government, some critical groups are encouraged to take the vaccine, but the employer is not obligated to promote vaccines. The employer, however, may freely endorse the efforts of the government to conduct vaccinations, but without causing discrimination to those employees who do not wish to be vaccinated.

From a personal data protection view, there are no grounds to ask for such information, because an employer has other less invasive measures in order to provide a safe working environment, which may be imposed before such intrusions of privacy are justified.

An employer may make such queries if the responses are expressly voluntary, and no verification or discrimination is imposed.

Since vaccination falls into the scope of data on the health status of an individual, this data is considered a special category of personal data. Therefore, while the employee may choose to reveal this data, the employer cannot impose such a duty.

However, exceptions may apply in those cases where the nature of the work process simply does not allow for mandatory social distancing or any similar substitute measure (e.g. plexiglass dividers).

No, employers cannot make vaccination against COVID-19 compulsory. There is no statutory obligation to vaccinate against COVID-19 in Montenegro for any profession. 

Yes, employees can refuse to be vaccinated since there is no current obligation for employees to be vaccinated against COVID-19. Furthermore, an employee is not legally obliged to give a reason for refusal to be vaccinated. There is no statutory obligation to vaccinate against COVID-19 in Montenegro for any profession. 

The employer cannot forbid non-vaccinated employees from entering the workplace. There may be room for exceptions in those cases where the nature of the work process does not allow mandatory social distancing or any similar substitute measure (e.g. plexiglass dividers) in addition to mask wearing since those cases would be tied to a significantly higher risk of contracting COVID-19 and spreading the illness. Other possible exceptions include when employees show visible signs of infection, thus giving employers reasonable doubt that the employees are fit to carry out their duties.

On the other hand, wearing of masks and social distancing (at least, a two-meter distance) in public closed spaces are mandatory for everyone, which means that these two preventive measures are also mandatory for those who are vaccinated. Therefore, it would not be possible to make a distinction between vaccinated and non-vaccinated individuals in terms of the obligation to wear masks.

The landlord of the building housing the employer could, for example, conduct no-contact measuring of body temperature of employees/visitors entering the premises (without keeping records of measurement data) and could refuse to admit into the building those employees who have a body temperature higher than normal, since this would indicate a high probability that they contracted a contagious illness. However, the landlord of a business building would not be able to request proof of vaccination at the entrance or refuse admittance based on this.

The landlord cannot request to see proof of vaccination at the entrance or refuse admittance based on this, but may enforce stricter measures such as measuring body temperature or similar systems to detect potentially infected individuals. There would, however, be no reason to discriminate when applying such measures. The logical approach would be to set up a booth for deliveries of documents, etc., which would reduce the need for visitors to enter the premises.

In July 2021, Montenegro implemented digital corona certificates, which shows that a person has been vaccinated against COVID-19, received a negative test result (PCR and antigen) or recovered from COVID-19.

Yes, because the attendees are there by their own will and can freely choose whether to attend an event where they will be asked to give information on their vaccination status.

Currently (as of September 2021), foreign vaccination certificates and test results are recognised if issued in by registered laboratories or health institutions. There are no business exceptions. Entry into Montenegro is open and travellers may enter with:

• Proof of vaccination with the appropriate number of doses (the last vaccination received at least 14 days before entry) and a vaccination certificate;
• Positive COVID-19 PCR test result, issued by a registered laboratory, which is older than 14 days but not older than 180 days, or a negative COVID-19 PCR test issued by a registered laboratory and not older than 72 hours;
• Negative COVID-19 rapid antigen test result taken at most 48 hours prior to arrival for all travellers (unless exempt based on vaccination or recovery as listed above).

This information in this chapter is accurate at the date of the publication and does not constitute a legal opinion. Please refer to the website of the Montenegrin government for more information or reach out to employment@cmslegal.com for further legal support.

Yes, if business travel falls within the regular scope of the employee’s work duties, the employer could oblige the employee to travel for business purposes. Since employers have a general obligation to cover all costs of business travels, the costs of testing non-vaccinated employees would need to be borne by the employer.

There have been no recent announcements of such new legislation.

No. As a general rule, no medical tests or examinations can be carried out in order to obtain medical information on an employee's state of health, except to check on the current fitness of an employee for the specific demands of his position. 

The only testing widely accepted in practice is the non-contact measuring of body temperature. However, it is still questionable whether such measuring may be imposed on employees, given that there are no specific rules that allow employers to do this.

The company may only send employees to undergo a medical assessment if there is justified suspicion and if the employer considers it necessary to prevent further spread of the virus in the company. However, the employer cannot directly order the employee to receive a COVID-19 test. This request must come from the doctor examining the employee and only if deemed medically necessary.

Professional medical centres appointed by the government conduct COVID-19 tests for citizens and persons with symptoms. These centres may be special COVID-19 clinics or healthcare institutions. Private clinics have been allowed to conduct COVID-19 testing for travel and other purposes upon the personal requests of individuals without symptoms or with a preference to have COVID-19 tests performed privately. 

No, there is no such obligation for the employee.

Since systematic testing of employees for infection or immunity to COVID-19 is generally prohibited, this cannot become a mandatary condition for employment. 

As explained above, testing employees for infection or immunity to COVID-19 is generally prohibited. However, exceptions might apply in those cases where the nature of the work process simply does not allow mandatory social distancing or any similar substitute measure (e.g. plexiglass dividers) in addition to mask wearing since those cases would be tied to a significantly higher risk of contracting COVID-19 and spreading the illness. Because there is no express provision defining the rights of the employer in this regard, a balance must be struck between health and safety requirements at work and the protection of employee privacy and personal data.