Right to Salary Benefit During Temporary Inability to Work Due to COVID-19

Abstract

In 2020, the Government of the Republic of Serbia brought a non-binding conclusion that recommends employers raise the amount of salary benefit from 65 to 100% in all cases involving the contagious SARS-COV-2 virus, which differs from the general norm for all other medical reasons. This recommendation becomes binding only upon being incorporated in a relevant general act of employers (mainly those funded from the RS budget), and it does not depend on any additional factors: whether the employee is vaccinated or not, whether he/she refuses treatment without justified reasons etc. The main question of this paper is whether the different treatment between the employees infected only by one specific disease could be justified. Related to that question we are also wondering if different treatments can be conditioned by the employee’s behaviour in assessing his/her contribution to the contagion and the development of the disease. Finally, we are questioning whether it violates the principle of equality or the actual application of the good faith and fair dealing principle to those who deliberately or in gross negligence endanger themselves and others. To answer these questions, we refer to the relevant case law of the ECtHR, which finds itself competent to the question of vaccination under the scope of Article 8.

1 The Republic of Serbia, COVID-19 and the Law “in the Context” of Natural Sciences

The World Health Organization (WHO), on March 11, 2020, declared the novel coronavirus (COVID-19) outbreak a global pandemic caused by the SARS-CoV-2 virus.¹ The pandemic created a new reality and brought many new challenges in almost all areas of life. The states worldwide responded to the pandemic differently, but with the same goal—to protect the population against this disease. The Republic of Serbia declared a state of emergency on March 15, 2020.² As the National Assembly was not in a position to convene, the decision proclaiming the state of emergency was adopted by the President of the Republic together with the President of the National Assembly and the Prime Minister, as envisaged by the constitution. This decision served as a base for bringing different legal acts which permanently or temporarily changed the legal system of the Republic of Serbia.³ Based on this decision, the Republic of Serbia made the derogation of the European Convention of Human Rights and Fundamental Freedoms, based on Article 15 of the Convention. Unlike some other countries, which in the notice of derogation of human rights addressed to the Council of Europe emphasized which rights this restriction refers to, the Republic of Serbia did not do so.⁴ The only rights in relation to which no derogation is allowed are the right to life (except in respect of deaths resulting from lawful acts of war), the prohibition of torture, prohibition of slavery and forced labor and punishment only based on law.⁵ This derogation lasted from April 7 to October 13, 2020.

The goal of this paper is to, looking at the issue of changing labor law regulations, point out the need to look at the issue of immunization “in context”—both of other sciences and in the context of one branch of law versus/complementary with another branch of law. Do we look at law in context, or do we look for context in law? Context has at least two meanings: how one legal norm relates to other legal norms or its social, political, economic, or religious environment. The first question has an internal perspective, so it is monodisciplinary, and the second question has an external perspective that requires the influence of other—non-legal disciplines. The external perspective is much more difficult for the legal researcher because it raises the question of how competent he/she is to conduct non-legal research. The internal perspective refers to the study within law; it explores the relationships between norms and their place in the legal system. The external perspective is interdisciplinary and more demanding regarding the research question and the methods for its processing, but in return, it offers rounded answers.⁶ To understand the issue of vaccination—the mandatory, as well as the difference in treatment toward vaccinated and non-vaccinated to prevent infectious disease, knowledge of natural sciences is needed, or at least the correct use of the conclusions reached by researchers from the field of natural sciences. The hypothesis we are starting from is that the findings made by natural scientists conditioned specific legal solutions, while the limits set by law affect the scope of research. In this particular case, if natural scientists had taken a firmer stance about the efficiency of the vaccination, the law could introduce mandatory vaccination. However, the broader understanding of causa in obligation law encourages defensive medicine. That is why we should support interdisciplinarity—even though that is the more challenging way.

2 Temporarily Absence from Work Due to COVID-19—A Punishment or a Reward

The COVID-19 pandemic motivated the Government of the Republic of Serbia to adopt Conclusion 05 No. 53-3008/2020-2 on the recommendation to employers to amend their general act, i.e., employment contract or other individual act, in the part that governs wage compensation, i.e., salary compensation.⁷ This conclusion recommends to all employers to pay the full amount of the salary to to all employees who are sick with COVID-19 and are temporarily absent from work, or are in isolation or self-isolation due to the contact with COVID-19 diseased. In conclusion, it was established that employers who adopt the recommendation pay compensation: for the first 30 days of absence from work, at the expense of the employer's own resources (all 100%), and starting from the 31st day of absence, 35% is at the expense of the employer’s own resources, because the prescribed amount of compensation of 65% according to the provisions of Article 95 of the Law on Health Insurance comes from the funds of the compulsory health insurance. However, the conclusion mentioned above underwent changes. The government amended it through conclusion 05 No. 53-4228/2021, which is in force from May 5 2021.⁸ A new line was added, stating: “The right to compensation of wages in the amount of 100% of the basis for compensation of wages is provided to employees who, during the duration of the declared infectious disease epidemic and before temporary absence from work due to the confirmed infectious disease COVID-19, were vaccinated, as well as to employees who cannot be vaccinated for health reasons and who, along with a doctor's report on temporary incapacity for work, submit a corresponding certificate from the competent health institution.”

As a reminder, compensation for wages during temporary incapacity for work belongs to the insured person, i.e. a member of his immediate family whose condition is such that the insured person is prevented from working. This is due to, among other things, the prescribed measure of mandatory isolation as a virus carrier, or due to the appearance of infectious diseases in his environment (Article 73, Paragraph 1, Item 4 of the Law on Health Insurance⁹). These persons are entitled to salary compensation, which is provided from the mandatory health insurance funds in the amount of 65% of the base for salary compensation. For the first 30 days of absence, the employer provides the compensation, and from the 31st day, the Republic Health Insurance Fund. However, the insured does not have the right to compensation if he/she intentionally prevents recovery or abuses the right to use the leave from work due to temporary inability to work in some other way (violation of self-isolation, for example, Article 84 of the Law on Health Insurance).

The new conclusion created doubts regarding the employer's obligation to provide compensation of 100% of wages to employees who were vaccinated when the epidemic was declared. Bearing in mind the previously stated positions and disputed point 3a of the new conclusion, it follows from the language interpretation of the provision “provided” that all employees who meet the condition of vaccination or its justified absence have the right to compensation of 100% of their salary. After that they are temporarily prevented from work as a result of being infected with COVID-19, regardless of where they were infected.

However, we would like to remind you of Article 115, paragraph 1, item 1 of the Labor Law.¹⁰ This article enables an employee who exercises the right to wage compensation to receive at least 65% of the average salary, which is definitely lower than the 100% enabled by the conclusions. As the conclusions—both initial and new—is an act of the executive power it cannot be considered a regulation (law) by which this issue could be handled differently.

The provisions of the initial conclusion are, without any additional discussion, incorporated into the special collective agreements for 2020.¹¹ This agreement confirms that the employee, in case of the established infectious disease COVID-19 or due to the measure of isolation or self-isolation ordered in connection with that disease has the right to 100% compensation. Once again, this agreement differs from the regulations stipulated in the Labor Law. This special collective agreement in the field of higher education, without amendments, has been extended until December 14, 2022.¹²

It is important to emphasise that the Republic of Serbia did not introduce a mandatory vaccination measure against the disease COVID-19.¹³ Therefore, there are no sanctions for those who decide not to get vaccinated. The Law on the Protection of the Population from Infectious Diseases defines the terms “mandatory immunization” and “recommended immunization”.¹⁴ The former refers to the immunization of persons of a certain age, as well as other persons specified by law, which the person to be immunized, as well as the parent or guardian, cannot refuse. However, there is an exception in the case of temporary or permanent medical contraindications determined by a medical doctor of the appropriate specialty, or an expert team, for contraindications (Art. 32, paragraph 2). The latter refers to immunization recommended by a medical doctor or a specialist in the appropriate branch of medicine in accordance with the population immunization program against certain infectious diseases (Art. 32, paragraph 5).¹⁵ It is important to note that although the Law on the Protection of the Population from Infectious Diseases underwent changes in 2020 inspired by the COVID-19 pandemic,¹⁶ and introduced concepts such as “home isolation” (Art. 29a), “quarantine in home conditions” (Art. 31a) or “preventive measures restricting the freedom of movement of persons in collective accommodation to prevent the introduction of infection into the collective” (Art. 31b). However, these amendments did not change the list of persons or diseases for which mandatory or recommended immunization is prescribed, neither serve as a basis for introducing mandatory immunization against COVID-19.

3 Summum Ius, Summa Iniuria

How do we find these conclusions inappropriate—in contrary to the Labor Law and antidiscrimination norms on national and international levels? The relationship between persons who went on leave due to a temporary inability to work due to infection with the SARS-CoV-2 virus and those who are absent due to temporary inability to work caused by another virus is disputed. Furthermore, the ultimate effect that the proposed measure has on different types of employers seems controversial. Before these provisions are interpreted in the context of the right to equality and the prohibition of discrimination, it is important to emphasize that the decision-maker itself, the government, referred not only to the decision on the introduction of a state of emergency as a legal basis, but also to Art. 8 para. 2 of the Labor Law. According to this provision the general act and the labor contract may establish better rights and more favorable working conditions when compared to the rights and conditions established by law.

The prohibition of discrimination represents one of the fundamental human rights, raised to the rank of basic principles by the Serbian constitution (Art. 21).¹⁷ Article 20 para. 2. foresees that the achieved level of human and minority rights cannot be reduced. The prohibition of discrimination is elaborated in the Law on Prohibition of Discrimination,¹⁸ as an umbrella law, which, among other things, prohibits discrimination based on the health status (Article 2, paragraph 1, point 1). It provides the entire range of prohibitions related to discrimination in the field of work (Art. 16). The Labor Law also prohibits indirect and direct discrimination of persons seeking employment, as well as employees, based on different personal characteristics, including their health status (Art. 18). Putting persons suffering from different diseases in a different position, and even more narrowly, persons suffering from a different type of infectious disease, can be considered as putting them in a disadvantageous position by any act, action or omission of a person or a group of persons, due to his or their personal characteristics, which constitutes direct discrimination (Art. 6 of the Law on Prohibition of Discrimination). In this case, by an act of the Serbian government, an act of direct discrimination was caused to persons suffering from some other infectious disease, which is not COVID-19. Special measures that the Republic of Serbia may introduce to achieve full equality of persons or groups of persons who are essentially in an unequal position with other citizens (affirmative action measures, Article 21, Para 4 of the Constitution) are not considered discrimination. Here, however, this article of the constitution cannot be applied. Persons suffering from the disease COVID-19 are in the same position as those suffering from other infectious diseases.

Another equally important question in the context of equality is whether the conclusions, equally affect the position of employees in the public and private sectors. As already emphasized, the preliminary conclusion has become an integral part of special collective agreements. In contrast, the employer in the private sector had no obligation to apply this recommendation to his employees. This leads us to the concept of indirect discrimination, which, by an apparently neutral provision, criterion or practice, puts or could put a person or a group of persons, due to their personal characteristics, in a disadvantageous position compared to other persons in the same or similar situation. Such a treatment is illegal, unless it is objectively justified by a legitimate aim, and the means to achieve that goal are appropriate and necessary (Art. 7. Law on Prohibition of Discrimination). However, in the special collective agreement the part concerning vaccination is not incorporated, so all the people in the public sector, infected by or isolated because of the COVID-19 get the full amount of the compensation. Thus, the number of people who are in an unequal (more favorable) situation is increased. By not introducing the provision from the new conclusion, which narrows the scope of this right to the vaccinated and persons who are contraindicated for vaccination, the incentive for vaccination as a potential legitimate goal is lost.¹⁹ Therefore, the initial conclusion will bind only the employer in the public sector and, consequently, will only affect the employees in the public sector. As users of budget funds, 100% of their earnings will be reimbursed by the Republic of Serbia, i.e., its citizens, in one way or another. For employees in the private sector, it is expected that compensation due to temporary disability for work remains 65%.

An additional question is whether persons who refused immunization without a medically justifiable reason have the right to compensation of wages (even 65%), if the infection of COVID-19 caused the inability to work. The Law on Health Insurance prescribes cases when the insured will not have the right to compensation for wages during temporary incapacity for work. However, the provisions of the Law on Obligations are also applicable,²⁰ especially those concerning the principles of conscientiousness and honesty (Art. 12. Law on Obligation). In case of inability to work due to the infection of COVID-19, the damage for the insured is reflected in the reduction of wages, for the employer in terms of payment of wages until the 30th day of incapacity, and for the Health Insurance Fund in terms of treatment costs and compensation after the 30th day of illness. Therefore, the question arises whether the employee who refused immunization without a valid reason contributed to the occurrence of damage by violating the principle of conscientiousness and honesty, and whether there is a right to compensation in the event of a temporary inability to work due to a COVID-19 infection.

We should emphasise that no national case law regarding vaccination exists in any context. Considering that court decisions are based, inter alia, on the ratified international treaties, we shifted our attention to the relevant case law of the European Court of Human Rights (ECtHR). In its grounds for reasoning, judges often point to the case law of the ECtHR. ECtHR was rarely involved in cases regarding compulsory immunization. In (a total of) two cases in which the court acted, it brought the issue of mandatory immunization in connection with a potential violation of Art 8 of the European Convention—the right to personal and family life.²¹ As there was no forced immunization in both cases, the initial question arose as whether this issue can be considered a violation of physical integrity. Regarding the urgent social need for the introduction of a mandatory vaccination policy, the ECtHR reminded that member states have a positive obligation to take measures to protect the life and health of people under their jurisdiction. The court further highlighted the risk to general health if immunization remained at the recommended level, which meant in the specific case that the response of the Czech authorities was a reaction to an immediate social need. The Court also accepted as valid and sufficient that the Czech government gave in support of the mandatory immunization policy, especially considering the best interests of children. Finally, examining mandatory immunization as a proportionate measure to protect the population from infectious diseases, the ECtHR first examined the relevant items of the national system (paras. 290–309). Examining the proportionality of the measure, the ECtHR examined the transparency of domestic decisions and emphasized the consensus regarding the effectiveness of immunization and the safety of vaccines. The second important question was whether there is a possibility of compensation for damages if an individual suffers adverse consequences due to immunization, although he emphasized that the said issue is not relevant in the specific case.

In another case—Vavrička and others the ECtHR explicitly confirmed that mandatory immunization, as an involuntary medical intervention, represents an interference with the right to respect for private life, regardless of whether the immunization was carried out (para 261). Although the case concerns the mandatory immunization of children against certain infectious diseases, and consequently, the sanctions that follow for the refusal of immunization (denial of stay in kindergarten, and a fine for the adult responsible for the children), it is expected that it paves the way for eventual decisions concerning (mandatory) immunizations in case of the disease COVID-19. So far, the ECtHR has not ruled on such cases. However, it has ruled in three cases in which it did not go into the merits, but decided on the issuance of temporary measures against the laws on mandatory immunization against the COVID-19 disease, namely one against France,²² and two against Greece.²³

4 Conclusion

In this paper, we tried to give answers to certain questions regarding the difference treatment during temporary inability to work due to COVID-19. Our main concern was whether the difference in treatment towards infected by COVID-19 and by other diseased could be justified and if that inequality in treatment could be caused by the prior behaviour of the employee (wearing a mask, vaccination). To conclude, we found the different treatments of vaccinated and non-vaccinated persons were justified and in accordance with Serbian law. It is also in accordance with the ECHR and the relevant case law of the ECtHR as far as applicable. The differing treatment passes the so-called discrimination test, as first introduced and subsequently confirmed by various cases of the ECtHR. We find the protection of the life and health of people under the jurisdiction of the Republic of Serbia objective reason, and different amounts of salary benefit for the vaccinated as the proportionate measure, speaking by the language of the ECtHR. Further, we argued the issue of mandatory vaccination, as the aside one. However, even though the Law on the Protection of the Population from Infectious Diseases actually allows the introduction of mandatory vaccination, it hasn't been done for COVID-19. We have argued that mandatory vaccination was one of the possible answers, at least at the peak of the pandemic. By not using this option the Republic of Serbia failed to use all possible means to protect its citizens. However, the measure taken to encourage vaccination by financially stimulating persons who decided on vaccination could have been a small, but an important incentive towards immunisation.