Constitutional Court
12 October 2022
Facts
A group of members of the Seimas requested the Constitutional Court to assess the provision of the Law on Prevention and Control of Infectious Diseases in Human Beings, according to which the list of jobs and areas of activity in which it is allowed to work for employees who have only been tested beforehand, and then periodically tested for the presence of infectious diseases, the list of activities and activities in which workers are allowed to work if they have been tested and/or periodically checked for the presence of a communicable disease for which a state-level emergency and/or quarantine has been declared, the procedure for checking workers shall be determined by the Government, as well as the provision that "A worker who refuses to be tested at the specified time for the presence of a communicable disease shall not be allowed to work in the following activities <. ...> shall be transferred within the same workplace to another job which he is allowed to do based on his state of health, or, if no such job is available, shall be suspended from work without pay.
Complaint
The applicant argued that such regulation (lists) should be laid down by law and not delegated to be determined by the Government. The applicant challenged the other provision on the grounds that it does not allow the employee to freely choose his/her job, does not assess whether the employee will be able to work in the job to which he/she is transferred, and thus potentially restricts the individual's right to freely choose his/her job.
Court’s ruling
The Court pointed out that, contrary to the applicant's contention, in the contested provision the legislator did not entrust the Government with the task of laying down a legal regulation which can only be laid down by law, but rather with the task of giving effect to the requirement laid down in the law in question - to carry out compulsory health examinations of employees and to specify in detail the fields of work and activities in which, because of the higher risk of spreading contagious diseases, the requirement is applicable, and to lay down the procedure for the implementation of the requirement, as well as the procedural norms.
As regards the right to choose one's work, the Court held that the legislator, in order to prevent the spread of communicable diseases and to ensure public health and safety, had laid down a condition for the exercise of the right to choose one's work, as enshrined in the Constitution, namely the requirement that the employee must be tested at a specified time to check that he/ she does not have a communicable disease, and the consequences of failure to comply with that requirement, and had therefore also implemented the obligation under the Constitution to create the legal conditions to ensure the constitutional right to adequate, safe and healthy working conditions.
Having regard to the fact that, under the contested provision, the worker does not perform the work assigned to him during the period of suspension, and to the fact that the suspension of a worker without pay is temporary and that the period of suspension is at the discretion of the worker, it was held that there is no reason to believe that there is a violation of the provisions of the Constitution.