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Slovenia

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

Table of contents
  1. Vaccination
    1. 1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 
    2. 2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?
    3. 3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?
    4. 4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?
    5. 5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent certain professions are (statutorily) obliged by your country to be vaccinated, such as in the health sector
    6. 6. Can employees refuse to be vaccinated? Please also include the consequences for employees working in a certain field or profession where vaccinations are obliged, but an employee refuses to be vaccinated. 
    7. 7. Can the employer refuse to admit employees into the workplace if they are not vaccinated in terms of returning to the workplace. Furthermore, is it possible to make two categories of employees and make distinction between these two groups of people in terms of safety measures as wearing face masks or quarantine obligations?
    8. 8. Can the landlord of the building of employer (if any) refuse to admit employees into the building (workplace)? Especially, when multiple employers/offices are established in one building, and they are sharing the elevator or have other shared areas within the building.
    9. 9. Can the employer make a distinction in requesting vaccination status (or proof by means of an app or COVID-19 pass) between employees and third parties such as visitors, suppliers, employees of suppliers, contractors etc.?
    10. 10. How has your country implemented the EU DCC (if applicable)?
    11. 11. In case employer organises external events, can vaccination status (by means of an app or COVID-19 pass) be requested by this external party?
    12. 12. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.
    13. 13. Can the employer oblige the employee to travel for business purposes? Who will have to bear the costs for testing in case of non-vaccinated employees?
    14. 14. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced.
  2. Testing
    1. 1. Can an employer oblige an employee to take a COVID-19 test (regardless if vaccinated or not)? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily?
    2. 2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?
    3. 3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?
    4. 4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?
    5. 5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?
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Preliminary note: The following answers regarding vaccination and testing are given in accordance with the provisions of the Decree on the method of meeting the condition of morbidity, vaccination and testing (PCT) to curb the spread of SARS-CoV-2 virus infections 1 Odlok o načinu izpolnjevanja pogoja prebolevnosti, cepljenja in testiranja za zajezitev širjenja okužb z virusom SARS-CoV-2, Official Gazette of the Republic of Slovenia no. 147/21 as amended.   (the “Decree”), adopted by the Government of the Republic of Slovenia. Since the processing of personal data in the context of determination of PCT eligibility constitutes an interference with the right to privacy, it is not permissible to regulate this right by governmental ordinance as is currently the case in practice – pursuant to the Slovenian Constitution the processing of personal data may only be regulated by law. For this reason, the Information Commissioner submitted a request to the Constitutional Court for a review of the constitutionality and legality of the ordinances, regulating the processing of personal data in the context of the PCT eligibility. However, until the Constitutional Court has ruled on the matter, all existing ordinances remain in force and all obliged persons must comply with the provisions until they are abrogated or annulled by the Constitutional Court. The current situation is therefore very uncertain.

Vaccination

1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 

The employer can always raise awareness and inform employees of the benefits of a COVID-19 vaccination. An employer 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 financial incentives to employees and cannot treat employees that choose to be vaccinated differently than the employees who wish to do so, since this could be considered health-related discrimination.

2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?

Employers are not obliged to offer their employees the opportunity to be vaccinated against COVID-19, nor are they obliged to support third parties or governmental institutions providing vaccines to employees.

3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?

In September 2021, the Slovenian government adopted a Decree, which introduced the PCT condition – recovered, vaccinated or tested. PCT stands for the Slovenian version “prebolevnik, testirani in cepljeni”. The PCT condition must be met by all workers and persons carrying out work for an employer or self-employed persons working on any other legal basis.

The Decree stipulates that the responsible person carrying out or organising the work must verify if employees have met the PCT condition. It further says that verification is carried out by means of the supporting documents referred to in Articles 2 and 6 of the Decree, which includes the vaccination certificate as well.

Therefore, the employer can verify this only within the scope of meeting the PCT condition, but cannot ask directly about vaccinations. The employer can make a record of an employee meeting PCT conditions, but not directly and only regarding vaccinations

4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?

No. Since vaccination status is health data, employees do not have a duty to inform the employer of their vaccination status. They are entirely free to decide whether or not to share this information with their employer. 

5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent certain professions are (statutorily) obliged by your country to be vaccinated, such as in the health sector

No, employers cannot make vaccinations compulsory apart from vaccinations stipulated as being mandatory by law. There is no statutory obligation to vaccinate against COVID-19 in Slovenia.

Recently, however, the above Decree was amended to stipulate that from 1 October 2021 all employees in state administration bodies will have to meet the PC condition (i.e. they must either prove that they have recovered from COVID-19 or have been vaccinated since testing will not suffice). This remains a delicate legal question and unions in the public sector have submitted a request to the Constitutional Court for a review of the constitutionality and legality of the Decree. On 30 September 2021 the Constitutional Court has decided that the enforcement of the provision regarding the PC condition is suspended until the final judgement of the Constitutional Court. During the suspension period state administration bodies shall meet the PCT condition as all other workers.

6. Can employees refuse to be vaccinated? Please also include the consequences for employees working in a certain field or profession where vaccinations are obliged, but an employee refuses to be vaccinated. 

Employees can refuse to be vaccinated since there is no current obligation for employees to be vaccinated against COVID-19. 

Regarding the consequences for employees working in state administration bodies, it is too early to give a conclusive answer since the enforcement of this rule has been suspended by the Constitutional Court before it has even entered into force and authorities have not issued any specific opinions regarding consequences. However, the Decree envisages that employees who do not meet the PC condition will be ordered to work from home, if possible. If work from home can’t be organised (because of the nature of the work and work process), the head of the body will act according to employment law provisions where it is unclear whether employees can suffer employment-related consequences (including disciplinary and termination proceedings).

7. Can the employer refuse to admit employees into the workplace if they are not vaccinated in terms of returning to the workplace. Furthermore, is it possible to make two categories of employees and make distinction between these two groups of people in terms of safety measures as wearing face masks or quarantine obligations?

No, the employer cannot refuse to admit employees into workplace solely for the reason of not being vaccinated. This may be a violation of the discrimination law and could open the employer to liability. 

In parallel, the employer can refuse access to employees who do not meet the PCT condition and are not allowed to carry out work. 

8. Can the landlord of the building of employer (if any) refuse to admit employees into the building (workplace)? Especially, when multiple employers/offices are established in one building, and they are sharing the elevator or have other shared areas within the building.

No. Landlords can only demand that users of their premises respect the measures that are in line with current legislation and the recommendations of the competent authorities, such as mask wearing, social distancing (e.g. limiting the number of persons in elevators), using disinfectants when entering the building and similar measures.

9. Can the employer make a distinction in requesting vaccination status (or proof by means of an app or COVID-19 pass) between employees and third parties such as visitors, suppliers, employees of suppliers, contractors etc.?

The Decree standardises the verification of the PCT condition for both employees and third parties. 

10. How has your country implemented the EU DCC (if applicable)?

The EU DCC is available in both paper and digital format on the zVem portal. In Slovenia, the National Institute of Public Health (NIJZ) issues the EU DCC on the basis of data entered into the Central Register of Patient Data. 

The EU DCC is issued for COVID-19 only and contains necessary essential information on individuals, such as first and last name, date of birth, date of issue, relevant information on the vaccine/test/disease and a unique code. Countries visited by EU DCC holders are not allowed to retain this information, and will only verify the validity and authenticity of the certificate, checking its issuer and signatory. The EU DCC also includes a QR code containing essential information and a digital stamp proving the authenticity of the certificate and protecting against forgery.

11. In case employer organises external events, can vaccination status (by means of an app or COVID-19 pass) be requested by this external party?

For external events, the employer as service provider must ensure that visitors have met PCT conditions. 

The rules do not specify who may carry out this task for an employer or service provider. The employer must therefore decide independently whom to assign this task.

12. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.

If the employee requires a negative COVID-19 test for business travel, the employer should enable the employee to be tested at the employer's expense and during working hours. 

As for requirements for entering Slovenia, there are no longer differences between the countries one is arriving from. The main consideration is determining an individual's PCT condition. Of course, there are some exceptions: categories of persons who are allowed to enter Slovenia without meeting the PCT condition who are not required to undergo home quarantine. Prior to entering Slovenia, all air and ship passengers will be asked to fill out a digital Passenger Locator Form (dPLF).

13. Can the employer oblige the employee to travel for business purposes? Who will have to bear the costs for testing in case of non-vaccinated employees?

Yes, if there are no governmental restrictions to leave the country. The employer must bear the cost of testing. 

14. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced.

With the introduction of the PCT system, and especially the introduction of PC (without testing) in state administration bodies, discussions regarding obligatory vaccinations are expected. 

Testing

1. Can an employer oblige an employee to take a COVID-19 test (regardless if vaccinated or not)? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily?

With the introduction of the PCT condition, employees who have not recovered or have not yet been vaccinated must take COVID-19 tests as stipulated in the Decree. An employer is obliged to organise workplace self-testing for employees once per week. 

According to the Decree, testing is not obligatory for vaccinated employees. 

2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?

With the introduction of the PCT system, employees are obliged to take the test once per week. The employer may either organise workplace self-testing of employees once a week at equal intervals or organise HAG (rapid) testing of employees through authorised institutions.  

3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?

According to the Decree, the answer is yes. For the purpose of proving self-testing, the responsible person forwards to employee a record sheet containing the date of self-testing, the result of the test and the signature of the employee.

4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?

Yes, the employee can refuse to be tested (i.e. no one can be forced to undergo a test). However, the general view is that an employee who refuses to be tested could suffer employment-related consequences. There are, however, strong opinions arguing against this position as well.

5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

If an employee does not meet the PCT condition, the employee is not allowed to carry out work. According to the Decree, the employer may apply measures in accordance with the Health and Safety Act, the Employment Relationship Act and collective bargaining agreements. The general possibility of assigning different duties to these employees depends on whether statutory conditions or the conditions provided for in the applicable collective agreement for assigning different duties have been met.