Autumn in many European countries began with new and more stringent restrictions as legislators across the continent tried their best to limit the spread of COVID-19. The situation in Latvia is no different. In fact, in mid to late October, Latvia had one of the highest COVID-19 case rates in the world. As a result of this, Latvia has been forced to introduce even stricter control measures, including in the field of employment relations. These restrictions concern matters relating to the organisation of work, employers’ right to require an employee to obtain a vaccination certificate to perform his or her duties and even to suspend or dismiss an employee (in accordance with legal principles).
First of all, in order to limit the spread of COVID-19 in the workplace, employers must provide employees with the possibility of working remotely, if the specific nature of the work allows it. Only employees who ensure continuity of work and cannot work remotely from home are allowed to perform their work duties in person.
In addition to that, the regulatory framework obliges employers to assess the work duties and working conditions of each employee working in person to determine the risk of infection and the potential risk to the health of others. The employer must ask the employee to obtain a vaccination certificate (or certificate of recovery) if this assessment concludes that:
- during the performance of his or her work duties, the employee is in direct contact with customers, comes into physical contact with, or is continuously closer than two metres to customers, or several employees work in constant mutual communication, come into physical contact with each other, or are continuously closer than two metres together;
- the employee has an increased possibility of becoming infected by being in direct communication and contact with a large number of people whose state of health is unknown; or
- the employee’s duties are of critical importance to the organisation or for ensuring the continuity of operation of the organisation.
On the basis of the employer’s evaluation, the employee has an obligation to get vaccinated.
If the employee commenced vaccination by 15 November 2021 (a date set by law), s/he may continue to perform his or her work duties in person until the vaccination certificate is obtained, provided that s/he has a negative test result.
However, if the employee refuses vaccination or had not received at least one dose by 15 November 2021, the employer is entitled to suspend the employee from work.
Before an employee is suspended, the employer must analyse whether it is possible to transfer the employee to another suitable position that does not require him or her to be present in the workplace or whether it is possible for the employee to carry out his or her current work duties remotely.
- it is not possible to transfer the employee to another position; or
- the employee cannot perform his or her work duties remotely; or
- the employee does not agree to a transfer or to remote work;
the employer has the right to suspend him or her from work for a maximum of three months or place him or her on furlough with or without pay until the the employee obtains a vaccination certificate (or certificate of recovery).
If after the maximum period of suspension or furlough the employee has still not obtained a vaccination certificate (or certificate of recovery) without an objective justification (for example, a doctor’s opinion confirming that the person needs to postpone vaccination), the employer has the right to terminate his or her employment without delay, with payment of severance pay.
It is worth bearing in mind that the law provides for a few exceptions. For example, an employer is prohibited from terminating a pregnant woman’s employment. If a pregnant woman cannot be transferred to other suitable work, the employer must temporarily grant her leave of absence.
Tougher rules from 15 December
From 15 December 2021, new requirements come into force: all employees working in person (regardless of whether they have direct contact with clients or others when performing their work duties) must have a vaccination certificate (or certificate of recovery).
Summing up, there should be no doubt that vaccination is the only long-term solution to COVID-19 crisis. With this in mind, the Latvian legislature has decided that all employees that satisfy the criteria of being at risk of contracting COVID-19 and working in person (until 15 December) or, from 15 December anyone working in person regardless of whether they have direct contact with others must have a valid vaccination certificate. If they cannot present a vaccination certificate, employees should be ready to be either suspended or dismissed.
This article was written by our colleagues from Cobalt Legal, the Latvian Ius Laboris member.