Yesterday, i.e. 15 March 3, the Ministry of Health again changed its extraordinary measure of 2021 March 1 on mandatory testing in companies (Ref. MZDR 47828/2020-16/MIN/KAN as amended effective from 9/3/2021, Ref. MZDR 47828/2020-21/MIN/KAN)
You can find the full text of the extraordinary measure <a href="https://cdn.shopify.com/s/files/1/1932/8043/files/Odstoupeni_od_smlouvy_EN.pdf?v=1595420299" data-gt-href-en="https://en.notsofunnyany.com/">HERE</a>.
Effective from March 26, 3, the obligation to test employees at least once a week also applies to all employers (entrepreneurs or national or state enterprises) in the Czech Republic who employ between 2021 and 10 employees. Essential for assessing who is affected by this measure is the clarification (in Article VI) that temporarily assigned employees of the employment agency are also considered to be employees and "other persons who, on the basis of a legal relationship other than an employment relationship, perform work or a similar activity at the employer's workplace together with his employees." Who the MZČR means by this needs to be interpreted with the help of a very questionable justification of the first change to the measure:
"The definition of the term "employee" is being expanded so that it also affects other categories of persons who are present at the workplace together with employees and it is so important from an epidemiological point of view that these other persons also have to undergo testing.
It can be assumed that the intention is to include entities that perform activities for the employer (as well as its employees) on a regular basis or for a certain longer period of time on the basis of a relationship other than employment law. This will probably not be a business partner who comes (one-off) to a personal meeting at the employer's workplace, but will be, for example, a person who, on the basis of a civil law contract, regularly provides services to the employer in a manner approaching an employment relationship (typically, it will be a so-called "contract na IČ" or also "Ičaré"), regardless of whether the relationship is legal (e.g. the relationship between a lawyer and a law firm) or illegal (the blackmail system).
In order to assess whether this obligation applies to a specific employer, it is therefore necessary to add up both employees in an employment relationship and employees working on the basis of agreements outside of an employment relationship and precisely these cooperating persons.
All employees (including persons considered to be employees) are obliged to undergo testing at the employer's request (the exception continues to apply to persons who have experienced COVID-19 within 90 days of the first positive test, and persons who have a vaccination certificate and at least 14 days have passed since their complete vaccination). Employees (and persons considered to be them) are then required to demonstrate in a qualified manner either that the test was performed (and a negative result) or that there is an exemption from the obligation to be tested (vaccination, having experienced COVID-19). In this context, it is possible to notice another change, although apparently unwanted. Apparently, an explicit obligation to prove testing (or an exception – vaccination, having experienced COVID-19) for employees of employers with fewer than 250 employees (Article IV of the measure as amended by this new amendment) was apparently omitted. However, this obligation can certainly be introduced even without an explicit modification (although the explicit formulation of this obligation for only one category of employees may raise questions and conjectures).
