Based on the decreasing numbers of COVID-19 patients and in view of the significantly improving epidemiological situation, the Hungarian government decided to lift the COVID pandemic induced state of emergency as of 1 June 2022. This means that from that date, the legislation applicable during the state of emergency will no longer apply. On 1 June, all Government Emergency Regulations relating to the COVID pandemic will also cease to apply, as they were linked to the application of Hungarian Act I of 2021 on the control of the COVID-19 pandemic, which also will cease to apply on 1 June. This government measure affects employers' practices to protect workers' health and safety, in particular the option to prescribe compulsory vaccination and other measures to prevent infection, as permitted by government regulations during an emergency.
No more compulsory vaccination
The Government Decree 598/2021 on the protection of workplaces against COVID-19, which enabled employers to require employees to be vaccinated against COVID-19, will also expire on 1 June 2022. Consequently, the legal authorisation for employers to make vaccination against COVID-19 compulsory and to provide compulsory certification of the vaccinations given will cease, and the legal authorisation for the processing of data in this respect granted by the above Government Decree will also cease.
As a result of the above, all employers basing their mandatory vaccination on this Government Decree should review their practices and decide under the applicable data protection and employment law, and occupational health and safety rules whether to require vaccinations and what COVID-19 control measures to be applied, including temperature measurement, mandatory testing and presentation of a vaccination certificate. There will no longer be a specific legal basis for these measures from 1 June 2022, which means that the sustainability of these measures will have to be assessed on the basis of general labour law, OHS and GDPR requirements.
Temperature measurement for visitors and employees
Temperature measurement practices can be kept if the employer is able to provide evidence that this protection measure effectively prevents COVID-19 infection. Employers should be able to prove that temperature measurements can detect COVID-19 infected visitors and that remote temperature measuring devices are accurate, given that COVID-19 infection is not always associated with fever and fever may not only be a symptom of COVID-19 infection, but also other diseases. When deciding on whether to apply temperature measures, a more in-depth analysis and detailed statistics on the effectiveness of temperature measurement in detecting COVID infections is needed, and experience needs to be collected and evaluated.
Mandatory COVID testing of employees
Like mandatory temperature measurement, to retain mandatory testing the employer must first identify the specific jobs where the threat of COVID-19 infection is high and must determine if infection cannot be prevented in any other less invasive way (e.g. social distancing, teleworking, decontamination). For work areas deemed to be of high risk of infection, the employer must carry out a separate risk assessment to demonstrate the necessity and suitability of such mandatory testing.
Furthermore, the employer needs to provide statistics and analyses on which workplaces have experienced business continuity problems due to COVID-19 infection during the pandemic and to evaluate how effectively mandatory COVID-19 tests detect the infected persons in the past also taking into account the inaccuracy problems of the rapid tests. If the above statistics demonstrate that testing has been effective for specific jobs and that COVID-19 infection in specific areas is a serious business continuity problem, then mandatory testing is not automatically excluded.
Visitor declarations of COVID-19 symptoms
Guest declarations have been self-reporting-based even during the more severe phases of the pandemic. Employers should review their statistics and analysis on what percentage of current visitors were infected with COVID-19 during the pandemic, and determine if any visitor was confirmed as the cause or source of a COVID-19 infection in the workplace? If yes, the number of such cases must be calculated. Another factor to consider is that when guests are interviewed, the accuracy of the data cannot be guaranteed, and the truthfulness of the answers cannot be verified (e.g. whether they have been abroad, they have had contact with a COVID-19 infected person, they have symptoms, etc.). Employers also should keep in mind that visitor declarations include personal and health data and that GDPR principles on data minimisation must be followed.
Showing vaccination cards
From 1 May, immunity-certificate cards are deemed only to be certificates for vaccination but not certificates attesting to COVID-19 immunity acquired through previous infections. Immunity-certificate cards issued on the basis of previous infections expired on 1 May. The current vaccination-based immunity cards (i.e. vaccination cards) automatically remain valid if the holder has received the third – or second of a two-dose vaccine – vaccination within six months of the previous vaccination. This means that the vaccination card can certify only a vaccination and not COVID-19 immunity, and employers no longer have a legislative basis to require vaccination cards to prove COVID-19 immunity.
As a result of the above, all employers should review their practices and decide under the general data protection, employment, occupational health and safety rules what COVID control measures they should apply.
For more information on how your Hungarian business should navigate this new regulatory environment, contact your CMS client partner or local CMS experts.
The article was co-authored by Anna Horváth