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To protect both the people and the economy, Baltic States have been making serious efforts to contain and control the spread of the Covid-19 virus. All three countries have developed and implemented unique approaches for managing the spread of the virus. Given that legislation often “lags one step behind” real-life events, there is a widespread public debate about what can be done by employers to protect their employees and clients from the uncontrolled spread of the virus. Leading labor law experts at the LEADELL law offices in Latvia, Lithuania and Estonia have been investigating both the similarities and differences in the Baltic States’ regulations, offering a comparative overview of the most relevant aspects of employment relationships during these tough times.

The overall trends in controlling the Covid-19 virus in the work environment are similar in all three countries, with the most significant difference being the right of an employee to choose regular testing as a substitute for vaccination in all cases in Lithuania. However, the regulations and particular groups of employees that are subject to vaccination requirement and must provide information about their health vary from country to country.

Can an employer request information concerning employee’s state of health?

• In all three countries, the employer has the right to obtain information about the employee’s state of health.

In Latvia, the employer has the right to request information from the employee regarding the employee’s compliance with the status of a vaccinated person or a person who has recovered from the virus if the employee stays or is permanently at the workplace, as well as if the employee is subject to regulatory requirements for possessing certificate of vaccination or recovery. The employer is also entitled to require employees that are permanently at the workplace to present their Covid-19 tests, if such a presentation of a test is acceptable, for example, when the course of vaccination has been undertaken. If an employee which is working in person has been diagnosed with Covid-19, he/she must inform their employer about it immediately.

In addition, to ensure the safety of the working environment, the employer may voluntarily arrange testing of all employees working in person (including fully vaccinated and recovered from the virus persons). If such testing is not performed or it has been performed more than 72 hours ago, employees who are working in person must certify in writing to the employer upon their arrival at the workplace that they have no acute signs of infectious respiratory disease, that they are not obliged to observe isolation, home quarantine or self-isolation, and that they have not been in direct contact with a person infected with Covid-19 in the last 10 days.

In Estonia, the employer has the right to inquire about whether employees are vaccinated solely when a risk assessment of the working environment has indicated vaccination to be a proportional measure for increasing safety in the working environment, however, the employer has no right to demand medical data, including data about vaccination, without the necessity for employees to be vaccinated. Albeit, an employer with more than 30 employees can request the Health Insurance Fund to provide information on the vaccination of its’s employees. The Health Insurance Fund, however, may only provide an answer for vaccination coverage, stating: “below 50%”; a specific percentage between 50% and 80% or “over 80% of employees are vaccinated”. This inquiry is often used by employers to consider the necessity for inviting a medical professional to perform vaccinations at the workplace.

In Lithuania, the employer has the right to demand information only from a specific group of persons included in the Government of the Republic of Lithuania Resolution No. 544. The Resolution stipulates a list of employees who, in order to perform their working duties, are required to: (a) be vaccinated; or (b) be periodically tested; or (c) provide sufficient evidence that he/she has been diagnosed with Covid-19, has recovered from it and therefore has obtained natural immunity. Thereupon, employees not listed in this Resolution, are only obliged to immediately inform their employer if they have been infected with the Covid-19 virus.

How does employment in the public, municipal or private sector affect the employee’s duty to be vaccinated?

• In Latvia, the workplace sector may serve as the only basis for the requirement to be vaccinated or recovered from the virus. In Estonia, such a requirement is assessed on a case-by-case basis according to the risk assessment of the work environment, regardless of the workplace sector. In Lithuania, the workplace sector may influence the requirement to be vaccinated, tested, or to have natural immunity against the Covid-19.

In Latvia, as of 15 November 2021, only those employees who have a vaccination or recovery certificate may perform their duties in state and local government institutions (including capital companies). For those working in the private sector, the employer provides teleworking opportunities if the characteristics of the job permit it. If teleworking is not possible, the employer must perform a risk assessment to determine the need for vaccination. In the case of private sector employees working in person, the employer must carry out an assessment, taking into account particular job responsibilities, on-site working conditions, risks of infection, etc., and determine which employees, volunteers, and outsourced workers need a vaccination or recovery certificate. Nevertheless, from 15 December 2021, also those employees of the private sector, including volunteers and outsourced workers, for whom the employer has not required the certificate, but who perform work duties in person, will need a vaccination or recovery certificate.

At the same time, the legislature has set a transitional period allowing an employee to continue working in person with a test certificate issued no earlier than 72 hours ago or with a screening antigen test organized by the employer during the last 72 hours, provided that the employee has undertaken the vaccination process by 15 November 2021 and will complete a full course of vaccination by 15 December 2021. Continuation of work with test certificates is permitted until a vaccination or recovery certificate has been obtained.

In Estonia, the employee’s obligation to be vaccinated depends on the risk assessment of the working environment, which identifies and assesses all hazards present in the working environment. The employer must establish the nature, magnitude, and duration of an employee’s risk of infection with regards to all jobs that involve a possible contact with a biological hazard, including Covid-19. Employees working in a higher-risk environment, such as a nursing home or hospital, may be subject to the requirement of vaccination more often than those, for example, working in separate well-ventilated rooms.

The requirement to be vaccinated, tested, or to have natural immunity in Lithuania applies to the groups of workers listed in Resolution No.544 who must comply with strict measures to prevent the spread of the coronavirus, for example, all employees at healthcare institutions, schools, and day-cares, public transportation, etc. must provide the employer with a valid Covid-19 certificate.

What are the criteria for an employer to require vaccination for employees working in the private sector?

• In Estonia and Latvia, under certain conditions the employee may be required to be vaccinated, however, in Lithuania, the employee has the right to choose regular testing instead of vaccination.

In Latvia, the employer must assess the job responsibilities and working conditions of each employee, including volunteers and persons with outsourced contracts, who perform their work in the workplace, determining the risk of infection and the potential risk posed to other people’s health. Based on the assessment of those risks of infection in the workplace and considering the principles of proportionality, legality, and equality, the employer shall require the employee to have a vaccination or recovery certificate if any of these conditions have been met: (a) the duties or services may be provided only in an epidemiologically safe or epidemiologically semi-safe environment; (b) if the employee is in direct contact with customers, comes into physical contact or is permanently closer than two meters from the customer during the performance of his/her duties, or several employees are in long-term contact, physical contact or are permanently closer than two meters during the performance of their duties; (c) if the employee has an increased risk of infection through direct contact with a large number of persons of which the status of their health is unknown; (d) if the employee’s on-site duties are critical to the functioning of the society, as well as to the continuity of the business.

As of 15 December 2021, all employees working in person will need to have a vaccination or recovery from the virus certificate (please see the above on the transition period). At the same time, employees whose job characteristics permit them to work remotely shall be provided with telework opportunities and there shall be no reason to request a certificate.

In Estonia, the employer may have the right to require full vaccination from their employees according to a risk assessment of the working environment that has indicated vaccination to be a proportional measure for increasing safety in the workplace. This quality of proportionality is analogical with the proportionality test known in European Union law, meaning that 1) there must be a legitimate aim for vaccination, 2) vaccination must be suitable to achieve the said aim, 3) it must be necessary to achieve said aim without there being a less onerous way of doing it, and lastly, vaccination must be reasonable considering the competing interests at hand. Due to the interference with the right to bodily integrity, vaccination is to be treated as an ultima ratio (last resort) measure. This means that other, less interfering, but at least as effective measures (e.g. separation of employees, working from home, etc.) must be considered before mandatory vaccination. It should be noted that in no case may vaccination be physically involuntary.

In Lithuania, the employer cannot demand employees to be fully vaccinated. In cases when employees are obligated to take measures against infectious diseases, one has a few options to decrease the risks present, for example, to be fully vaccinated, to be periodically tested, or to prove to have natural immunity after recovery from the virus.

Can an employer terminate an employment contract due to non-vaccination?

• In Estonia and Latvia, under certain conditions, non-vaccination of an employee may serve as the basis for termination of the employment relationship by the employer, while in Lithuania non-vaccination in itself may not be the basis for termination of employment.

In Latvia, pursuant to the legal amendments of 6 November 2021, an employer has the right to terminate the employment relationship with an employee for whom vaccination was mandatory to perform his/her working duties if the particular employee has not obtained a vaccination or recovery from the virus certificate without a valid objective reason after a maximum period of suspension from work or furlough due to the employee’s fault lasting for more than three months. In this case, the employer has the right to terminate the employment relationship with the employee immediately by paying a benefit equal to one month’s salary. Such rights of the employer may not be exercised against a pregnant employee or any woman in the post-natal period of up to one year. In cases where a woman is breastfeeding during the post-natal period, the right to terminate the employment relationship shall not be exercised throughout the period of breastfeeding until the child is two years old.

In Estonia, the employer may terminate an employment contract in case of not vaccination only if a prior risk assessment of the working environment has been conducted and it has concluded vaccination to be a proportional measure for ensuring safety in the workplace. If the risks discovered in the risk assessment of the working environment can be mitigated with other measures, vaccination shall not be deemed mandatory. Considering the mentioned prerequisites (the vaccine mandate being ultima ratio, warning of the employee about the termination, etc.) for mandatory vaccination at the workplace, the employer can terminate the employee’s employment contract according to the Employment Contract Act due to the non-suitability of the employee for the particular position.

In Lithuania, an employer cannot terminate an employment contract simply because the employee has not been vaccinated. If an employee who is not vaccinated or recovered from the virus refuses to be periodically tested, the employer must suspend the employee only if such employee is unable to work remotely or it is not possible to transfer the employee to work in the other area at the same workplace, where the employee could legally perform his or hers work duties without posing a risk for other colleagues or costumers. However, if the employee grossly violates labor protection regulations, he/she may be dismissed for such an action.

LEADELL law offices – Vītols in Latvia, Pilv in Estonia, and Balčiūnas and Grajauskas in Lithuania – are among the leading law firms in the Baltic States. The report on the relevant aspects of employment relationships during the pandemic was prepared by:

Ilze Jankeviča, attorney-at-law and partner at the law office LEADELL Vītols, Latvia
Marko Pilv, attorney-at-law and partner at the law office LEADELL Pilv, Estonia
Hendrik Rätsep, lawyer at the law office LEADELL Pilv, Estonia
Tomas Karpičius, lawyer at the law office LEADELL Balčiūnas & Grajauskas, Lithuania
Kotryna Pociūtė, lawyer at the law office LEADELL Balčiūnas & Grajauskas, Lithuania