COVID-19 vaccination and testing in Ukraine - 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? 

Ukrainian labour legislation does not envisage specific methods of encouraging employees in such cases.

An employer may promote the importance of vaccinations (including against COVID-19) among staff. It may encourage vaccinations by allowing inoculations during working hours and recording the time spent doing so as working time. As a general rule, the employer may also suggest covering the costs of vaccination or organise the vaccination of employees who have consented to be vaccinated (provided the vaccine is available on the private market, which so far was not the case with COVID-19 vaccines).

Also, the Public Health Centre under the Ministry of Health of Ukraine supervises and coordinates local governments and municipalities with programmes of on-site vaccinations at workplaces. Interested employers with a headcount of or exceeding 50 employees are eligible for enrollment into on-site vaccination programmes by public mobile vaccination units.

An employer is entitled to apply any non-discriminatory incentives for the active participation of employees in measures that increase occupational safety (including vaccinations) indicated in the collective bargaining agreement.

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?

There is no such obligation to offer vaccinations (including against COVID-19). However, the employer is not prohibited from offering optional vaccinations to staff and paying for these vaccinations (provided the vaccine is available on the private market, which so far was not the case with COVID-19 vaccines). At the same time, an employee is free to refuse the offered vaccination.

Ukrainian legislation imposes general obligations on employers, which may concern, among other things, support staff vaccinations and support third parties or governmental institutions that are providing vaccines to employees, including:

  • complying with and supporting sanitary and anti-epidemic requirements and measures approved by the competent authority;
  • not admitting into the workplace employees who refuse to be vaccinated in cases where vaccination is compulsory (so far, this has not been the case with COVID-19 vaccinations).

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

Ukrainian legislation provides for two types of vaccinations: mandatory and voluntary.

If a vaccination is voluntary (e.g. COVID-19, influenza, etc.) the employer cannot verify an employee’s vaccination status unless explicit consent for processing this sensitive health data is granted by the employee or unless the Cabinet of Ministers defines as permissible the processing of this data without an employee's consent.

In light of the COVID-19 pandemic, specific rules apply for certain areas of business, such as for the functioning of:

  • educational institutions;
  • hotels;
  • mass events;
  • gyms, fitness centres;
  • cinemas, theatres, concert halls, other cultural institutions;
  • catering establishments (e.g. bars, restaurants, cafes, etc.). 

Employers providing services in the above areas are not allowed to operate unless at least 80% of their employees have one of the following documents:

  • document confirming receipt of a full course of vaccinations;
  • international or domestic COVID certificate confirming completion of either partial (“yellow” certificate) or full (“green” certificate) vaccination course against COVID-19;
  • document confirming a negative test result or recovery from COVID-19, or a document confirming recovery from COVID-19, the validity of which can be confirmed by the mobile application “Diia”.

Therefore, to ensure compliance with the effective legislation, employers providing services in the above areas have the right to request that their employees provide one of the aforementioned documents, and such a request will not be considered unlawful or discriminatory.

If vaccination is defined as mandatory by (i) the Ministry of Health of Ukraine for certain professions, facilities and/or organisations, or (ii) the Chief State Sanitary Doctor of Ukraine in case of the threat of a mass spread of dangerous infectious disease according to epidemic indications, the employer may make records of the vaccinated employees without their consent.

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

No, an employee has no such duty in the case of voluntary vaccinations (e.g. a COVID-19 vaccination).

If a vaccination is defined as mandatory by (i) the Ministry of Health of Ukraine for certain professions, facilities and/or organisations, or (ii) the Chief State Sanitary Doctor of Ukraine in case of threat of mass spread of dangerous infectious disease according to epidemic indications, an employee must inform the employer about any inoculations. 

As mentioned above in the answer to question 3, employers providing services in certain areas have the right to request that employees provide certain documents confirming they are COVID-19 free (including documents confirming their vaccination) in order to legally operate. At present, however, employees have no statutory duty to inform the employer on their vaccination status. Ensuring the conformity of employees with established restrictions (including their vaccination against COVID-19) is an employer’s obligation and a precondition for the employer’s lawful operation in certain areas.
 

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

Yes, but only if the vaccination is defined as mandatory by (i) the Ministry of Health of Ukraine for certain professions, facilities and/or organisations, or (ii) the Chief State Sanitary Doctor of Ukraine in case of threat of mass spread of dangerous infectious disease according to epidemic indications. If a vaccination is defined as mandatory, a refusal to be vaccinated obliges the employer not to admit the unvaccinated employee into the workplace.

As of September 2021, neither the aforementioned list of professions, facilities and/or organisations for which vaccination is mandatory nor the decision of the Chief State Sanitary Doctor of Ukraine on mandatory vaccination due to epidemic indications have been adopted. 

If a vaccination is defined as voluntary (e.g. a COVID-19 vaccination) and an employer imposes an obligation on employees to be vaccinated, this may be considered unlawful and discriminatory.

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 may refuse to be vaccinated (irrespective of whether the vaccination is voluntary or mandatory) without providing reasons for such a refusal. 

If a vaccination is defined as mandatory, an employee's refusal to be vaccinated obliges the employer not to admit such an employee into the workplace.

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?

An employer has an obligation not to admit unvaccinated employees into the workplace only if a vaccination is defined as mandatory by (i) the Ministry of Health of Ukraine for certain professions, facilities and/or organisations, or (ii) the Chief State Sanitary Doctor of Ukraine in the case of a threat of the mass spread of dangerous infectious disease according to epidemic indications. In case of a mandatory vaccination, the option to distinguish between categories of workers is not applicable since in this case all employees must be vaccinated in order to gain access to the workplace.

If a vaccination is defined as voluntary (e.g. a COVID-19 vaccination), a refusal to admit an unvaccinated employee into the workplace may be considered unlawful and discriminatory. In such a case, dividing all employees into two categories and imposing additional requirements (e.g. an obligation to wear masks, social distancing, etc.) on one such category (e.g. unvaccinated employees) may also be considered unlawful and discriminatory.

As mentioned in the answer to question 3 above, employers providing services in certain areas have the right to request that employees provide certain documents to confirm they are COVID-19 free in order to legally operate. If employees refuse to provide documentation on their COVID-19 status, employers do not have the legal grounds to bar these employees from the workplace due do their failure to confirm their COVID-19-free status. Potentially this may create significant issues for these employers since they will be unable to maintain the required percentage of employees (not less than 80%) with confirmed COVID-free status, which will necessitate ceasing operations unless there are other grounds for not admitting employees with unconfirmed COVID-free status. 

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.

Certain restrictions regarding rules of admission to office premises, imposed by the landlord, are possible provided that such rules are specifically addressed in the lease agreement. In general, the landlord has no legal obligations to control entry into the office building unless the lease agreement establishes such commitments. The landlord may also issue recommendations for property use (e.g. elevator sharing, warnings to maintain social distancing, the use of facial masks, etc.).

In certain cases (e.g. shopping malls, cafes, restaurants) the landlord may refuse to admit employees into the building due to epidemiologic restrictions imposed by the Ukrainian government and applied according to the level of epidemic danger (i.e. “green”, “yellow”, “orange” and “red” levels). 

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.?

Presently, an employer is not required to ask employees or other third parties visiting the premises for COVID-19 vaccination status. However, employers providing services in certain areas (as mentioned in the answer to question 3 above) have the right to request that employees and other third parties entering their premises provide documents confirming their COVID-19-free status

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

Since Ukraine is not a member state of the EU, the EU DCC cannot be issued by Ukrainian authorities. At the same time, the reciprocal approach is implemented. On 20 August 2021, EU countries began to acknowledge and accept international COVID-19 certificates issued by Ukrainian authorities under the same conditions established for the EU DCC. In turn, Ukrainian authorities acknowledge and accept the EU DCC.

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?

If there is a “green”, “yellow” or “orange” level of epidemic danger established, the employer organising external events can request that visitors of the external event provide one of the following documents:

  • document confirming receipt of a full course of vaccinations;
  • international or domestic COVID certificate confirming completion of either partial (“yellow” certificate) or full (“green” certificate) vaccination course against COVID-19;
  • document confirming a negative test result or recovery from COVID-19, or a document confirming the recovery of an employee from COVID-19, the validity of which can be confirmed by the mobile application “Diia”.

In the case of a “red” level of epidemic danger, mass events are prohibited.

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

The employer is required to cover the related costs of business trips, including COVID-19 tests, if they are required for business travel abroad. The exact rules to enter Ukraine depend on the level of epidemic danger, established by the government. Below, rules for “yellow” level, which is currently in force in Ukraine, are briefly presented.

Crossing the border by Ukrainian citizens

Ukrainian citizens are free from providing any documents regarding COVID-19. However, they must undergo mandatory self-isolation upon arrival for ten days (unless they are travelling from Russia or India, in which case they should undergo mandatory self-isolation for 14 days that cannot be terminated early). The ten-day period starts after 72 hours from the moment the individual crosses the state border. Self-isolation may be cancelled if negative results of PCR or express tests are obtained during the 72-hours gap. To prevent self-isolation, a citizen of Ukraine must provide either negative PCR test results or express test results, obtained no later than 72 hours prior to entering Ukrainian territory, or a full-course vaccination certificate displayed when crossing the border. 

Crossing the border by non-Ukrainian citizens

Non-Ukrainian citizens must provide either negative PCR test results or express test results, obtained no later than 72 hours prior to crossing the Ukrainian border, or international vaccination certificates that confirm COVID-19 vaccination with vaccines approved by the WHO for emergency use. At the same time, non-Ukrainian citizens must also have medical insurance certificates with COVID-19 coverage. Unvaccinated non-Ukrainian citizens should install the “Vdoma” app and undergo a mandatory self-isolation upon arrival for ten days (unless they are travelling from Russia or India, in which case they should undergo a mandatory self-isolation for 14 days that cannot be terminated early). The ten-day period starts 72 hours from the moment the individual crosses the state border. Self-isolation may be cancelled if the negative results of PCR or express test are obtained during the 72-hours gap. 

Read more about this topic in our Expert Guide to travel restrictions for non-EU citizens

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?

According to the labour laws, travelling for business will be considered performance of an employee`s duties. Hence, refusal may lead to the breaching of a labour agreement and workplace discipline. Labour laws establish the types of costs associated with business trips that are subject to compensation by the employer and the level of compensation. Presently, there are no statutory provisions in force establishing an employer’s obligation to bear the costs for COVID-19 testing for unvaccinated employees.

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

No substantial legislative changes applicable for private businesses have been announced. In the meantime, further developments are possible and additional restrictions for local businesses may be introduced within the upcoming months depending on the epidemic situation in Ukraine and the subsequent introduction of “orange” or “red” levels of epidemic danger on a regional level or nationwide.

Additionally, on 4 October 2021 Ministry of Health adopted  a list of professions, facilities and/or organisations for which COVID-19 vaccination is mandatory. As of the date of this Guide the list covers only public servants, as well as employees of educational institutions and local public administrations. We cannot exclude that the list will be further extended. 

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?

An employer may oblige an employee to take a COVID-19 test, if this was agreed upon between the parties earlier (e.g. by an employment agreement), or if the competent authority adopts such requirements applicable to certain employees.

It is not required or prohibited to provide testing in the workplace unless other rules are prescribed by an employment agreement or a collective agreement. 

At the same time, some employees are obliged to take COVID-19 tests regularly under the law (e.g. healthcare specialists, specialists who work for the National Police and the National Guard of Ukraine).

Additionally, a valid negative PCR testing result in the mobile app “Diia” is considered legitimate ground for admission into the workplace for non-vaccinated employees or vaccinated employees without valid vaccination certificates that are working in certain industries (as mentioned in answer to question 3 above).

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?

If testing is not mandatory by law, the frequency of passing tests may be envisaged by mutual agreement between the employer and employees (e.g. through an employment agreement or collective agreement).
 
There are no specific requirements for performing tests through the employer`s medical personnel or a third party that is licensed for taking such tests.

Healthcare specialists are obliged to take COVID-19 tests biweekly. The frequency of testing of specialists who work for the National Police and the National Guard of Ukraine has not been publicly disclosed. 

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

No, unless this obligation was mutually agreed upon by the employer and employees (e.g. in an employment agreement or collective agreement).

At the same time, in case of a positive COVID-19 test result, an employee is obliged to keep quarantine measures, envisaged by the law.

If an employee tests positive for COVID-19 (or is on a contact list of a person with a positive test), officials from the state epidemiological service may contact the employer and issue an order not to admit this employee into the workplace. 

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

If testing is not mandatory under the law, an employee may refuse to be tested. 

Unless the competent authority imposes a requirement on a particular organisation, testing may only become a mandatory condition of employment for certain categories of employees.  

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

An employer is generally responsible for ensuring the occupational safety of employees in the workplace. It must ensure the functioning of the labour safety system, including implementation of required preventive measures according to constantly changing circumstances. 

An employer can generally instruct non-tested employees, non-vaccinated employees (or employees who have not recovered from COVID-19 within the defined period of time) with valid PCR testing results in the mobile app “Diia” to perform different duties without the employee’s consent, if such an instruction complies with the following:

  1. The duties are performed at the same company, at the same or different workplace or at another subdivision in the same location;
  2. The newly instructed duties must be performed under the same specialisation, qualification or position; the use of other machinery or mechanisms is allowed.

Otherwise, employee consent is required for performance of different duties.