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

  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?

Vaccination

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

Given that vaccines are voluntary in Spain, for the time being any incentive or even encouragement to vaccinate on behalf of an employer may be considered interference in the intimacy and private lives of employees. 

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?

No, the employer is not obliged to offer vaccines. The Public Health System provides vaccines. From June 2021, however, some companies that meet certain requirements (which depend on each Autonomous Community) have signed cooperation plans to support the Public Health System in providing vaccines to its employees and to the general population.

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

The employer may request this information from employees as long as this is required in order to adapt measures to ensure health and safety in the workplace. Before asking for this information, the employer should confirm with the H&S provider the necessity of knowing this for H&S specific purposes.

In any case, the recording of vaccinated employees must comply with certain data protection requirements (e.g. complying with the minimisation principle, the purpose of the processing, and limiting data retention to a period that is strictly necessary).

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

No, since vaccinations are voluntary in Spain. However, as mentioned above, the employer may request this information with the aim of adopting measures to ensure health and safety in the workplace – provided that the H&S provider confirms that this information is necessary for these purposes. 

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. Employees – and people in general – are only obliged to be vaccinated if (i) there is a specific judicial decision forcing them to do so, or if (ii) a new regulation enters into force in this respect. The company can take no retaliation against employees refusing vaccinations: an employment court could declare a dismissal null and void for this reason (although there is not yet any solid judicial precedent on this matter).

Concerning specific positions (e.g. those implying direct contact with people at risk), citing compulsory vaccinations as a proportionate and ideal measure to minimise COVID-19 related risks may be difficult to justify in light of other protection methods, which can also prevent COVID-19 infections (e.g. masks, hygiene, social distancing, and proper ventilation). In this regard, it should be noted that in Spain vaccinations are not compulsory either for health workers or even for employees who provide services in direct contact with elderly people.

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. 

Yes, an employee can refuse and does not need to provide a reason since vaccinations are voluntary in Spain at this stage. 

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, this is not possible under current H&S regulations. For the time being, vaccinated employees still need to take the same COVID-19 prevention measures as non-vaccinated employees.

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, this is currently not possible.

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?

No, this is currently not possible.

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

EU DCC (including vaccination certificates, test certificates and recovery certificates) has been implemented in Spain with the purpose of facilitating mobility between EU countries.

Regardless of the EU DCC, all visitors that enter in Spain must fill in a sanitary control form. Visitors with a valid EU DCC who incorporate it on the form will obtain a QR FAST CONTROL code that will allow them to accelerate the control process upon arrival to Spain.

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?

There are contradictory criteria in different Spanish territories, but a recent decision of the Supreme Court has stated that a legal regional provision that obliged people to show a COVID certificate in order to enter certain public places (e.g. restaurants and bars) is justified only when (i) the area where the certificate is requested is considered to be at high risk of contagion, and (ii) the measure is temporary.

Therefore, where there are not any legal provisions expressly allowing this (which depends on each territory of Spain), it seems unlikely that it is considered lawful to request these certificates.

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

Proof of vaccination specifically is not necessary to enter in Spain for professional purposes. Spanish nationals, citizens of the EU and their family members, and other beneficiaries of the right to free movement in the EU must fill in and sign an online form available at the following link: https://www.spth.gob.es/. Once the form has been completed, the visitor will obtain a QR code, which must be presented on arrival in Spain.

People coming from a country/region considered at risk must present a vaccination certificate, negative certificate of an active COVID-19 diagnostic test for Infection or a certificate of recovery (EU DCC is valid for this purpose). High-risk countries/regions are included in a regularly updated list.

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, the employer can do this where such travel is necessary or forms part of the essential content of the employment relationship. However, if this travel presents serious and imminent risk to the employee’s health, the employee could refuse to travel. Situations of serious and imminent risk should be assessed on a case-by-case basis, depending on an employee's particular circumstances and on the content of the trip. With the current pandemic situation, except in exceptional circumstances, a refusal to travel would be difficult to justify.

Employers need to bear the cost for testing of non-vaccinated employees, if necessary for travel. A recent provisional decision of an Employment Court has stated that requesting non-vaccinated employees to bear the costs for testing is not permitted.

Although the decision is not final yet, at this stage it is advisable to follow these criteria.

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

The possibility of requiring citizens to present the EU DDC before entering certain facilities (e.g. restaurants) and the circumstances for making such a request are currently under discussion.

There are not yet any specific regulations or relevant case law precedents regarding COVID-19 vaccinations and their effect on employment. For the time being, we are not aware of any discussion on this matter. Having said that, even if no regulations are ultimately approved, it is likely that judicial precedents will be published in the following months on this matter.

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?

Employers should offer medical checks, but in principle employees are free to reject them. However, if these medical checks are essential to verify whether an employee's health may be a risk or danger to other employees, they can be imposed if employee representatives are consulted. 

Concerning COVID-19 tests, it is not clear if this is always an essential measure for verifying if an employee is putting other employees in danger since (i) measures for minimising the risk of spreading disease can be imposed; and a (ii) negative test at a given time does not preclude the employee from testing positive some hours later. 

These circumstances should be analysed on a case-by-case basis. For example, a judicial precedent has admitted compulsory COVID-19 testing for workers in film productions (where other measures such as social distancing and strict mask rules cannot always be adopted). 

From a data protection perspective, the processing of COVID-19 testing data must comply with certain legal requirements.

Even if consent is not necessary, the processing of these personal data must be limited to ensure the protection of employee health information at work. In this case, the processing of these data must be lawful, and comply with all applicable measures (e.g. data protection principles) and the minimisation and confidentiality of the processing.

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?

There is no compulsory timing for taking a test, as long as the timing does not prevent the measure from being effective. COVID-19 tests should be performed by medical personnel: it is advisable that they are done by a professional third party, as the results cannot be known by the employer without the consent of employees. 

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

If the employee is on sick leave or in quarantine (which should be the case if they test positive to COVID-19), the employer must ask if the worker has tested positive. In this case, employees must answer and identify any other employees that they have been in close contact with.

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

In principle, employees are free to accept or refuse to be tested, except if these medical checks are essential to verify whether the health of employees may be a risk or a danger to other employees. This is a circumstance, which should be analysed on a case-by-case basis.

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

Mandatory testing is not advisable since this could be considered an unjustified, disproportionate and even discriminatory measure. 

However, mandatory tests could be justified if it is clear that this was an essential measure for minimising the risk or danger to other employees. But such an argument in practice may be difficult to make since there are other protection measures available (e.g. masks, social distancing, etc.). 

If other prevention measures cannot be taken (e.g. if the employee who refuses to take the test cannot wear a mask), then the employee can be assigned different duties, especially if the employee is normally in contact with particularly vulnerable people.

However, this should be analysed on a case-by-case basis, taking into consideration the specific situation, risks and duties.