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Content updated: 08-11-2022 12:29

The legal regulation relating to the requirement to be tested for a communicable disease in order to carry out the specified work or to engage in a certain activity is not in conflict with the Constitution

12-10-2022

Having examined the case subsequent to the petition of a group of members of the Seimas, the Constitutional Court has recognised by its ruling that paragraph 1 of Article 18 of the Law on the Prevention and Control of Communicable Diseases in Humans (hereinafter referred to as the Law), according to which the lists of the jobs and areas of activity in which employees are permitted to work only after prior and periodically continued health examinations for the presence of communicable diseases are established by the Government, and the provision “An employee who refuses to be tested for the presence of a communicable disease in due time … shall be transferred to perform other work in the same job, which he or she is allowed to work in accordance with the state of his or her health, and, if there is no such an opportunity, he or she shall be suspended from work without the payment of remuneration” of paragraph 4 of the same article are not in conflict with the Constitution. This is the second case where the constitutionality of the legal regulation related to the management of the COVID-19 pandemic has been decided.

The Constitutional Court noted that, contrary to what the petitioner claims, in the impugned paragraph 1 of Article 18 of the Law, the legislature did not instruct the Government to lay down a legal regulation that can only be established by means of a law, but rather created the preconditions for the implementation of the requirement, consolidated in Article 18 of the Law, for employees to undergo a mandatory health check, to specify in which areas of work and activities this requirement is applicable due to the potential increased risk of the spread of communicable diseases, as well as to regulate the manner and procedural relationships for the implementation of that requirement. In this way, the legislature fulfilled, among others, the obligation, arising from paragraph 1 of Article 48 of the Constitution, to establish such a legal regulation that would create the legal preconditions for the implementation of the constitutional right of each individual to have proper, safe, and healthy conditions at work. Moreover, the impugned legal regulation, which entrusts the Government with the task of establishing the above-mentioned lists of work and activities, does not in itself imply that certain persons are discriminated against or that certain persons are granted privileges.

It was held in the ruling of the Constitutional Court that, according to paragraph 4 of Article 18 of the Law, the suspension of an employee from work without paying him or her remuneration until the date on which he or she checks for the presence of a communicable disease applies only when, taking into account the nature of the work and the state of health, in order to prevent the spread of communicable diseases and ensure public health and safety, it is not possible in that workplace to apply other measures and allow him or her to work without endangering the health and safety of other employees. Thus, the nature and essence of the human right, enshrined in paragraph 1 of Article 48 of the Constitution, to freely choose a job is not denied and the constitutional principle of proportionality is observed.

Since, according to the impugned provision of paragraph 4 of Article 18 of the Law, at the time when an employee is suspended from work he or she does not perform the work assigned to him or her and the suspension of the employee from work without paying him or her remuneration is applied temporarily (until the date when he or she checks whether he or she is suffering from a communicable disease) and such a suspension period depends on the employee himself or herself, the Constitutional Court did not recognise that the provision of paragraph 1 of Article 48 of the Constitution, according to which everyone has the right to receive fair pay for work, is violated.