The question regarding the obligation to perform Covid-19 tests on company employees is controversial, but even more so if the employee has been in contact with a positive test result.

As is well known, a large number of legal regulations related to the management of the health crisis situation caused by Covid-19 have been issued subsequent to Royal Decree 463/2020, of March 14, declaring a State of alarm. Now, the recent Supreme Court Ruling of May 20, 2021 (rec. 130/2020) has ruled on the obligation of a transport service company to perform PCR tests in the month of March 2020 to ambulance drivers transporting patients infected by Covid-19.

The Supreme Court understands that in the present case attention must be paid to the moment in which each of the legal norms has been in force in order to ascertain which were the obligations demandable to the company in this matter on the specific date to which the facts referred.

In this regard, the judgment analyzes the various orders of the Ministry of Health and the Basque Health Authority regulating the obligations of companies to prevent and contain the health crisis in their workplaces and concludes that at the time of the facts (March 2020) no regulation required tests and that such imposition cannot be considered included in the generic obligation to protect employees pursuant to the Law on Prevention of Occupational Risks.

Specifically, the High Court holds that, at that time, the recommendations and instructions issued by the Health Authorities in relation to the prevention of the transmission of Covid-19 had to be followed, so that at no time was the obligation to carry out detection tests imposed on the company and, consequently, it understands that there is no violation of the fundamental right to health, life and physical integrity, not even when they have been in contact with a Covid-19 positive person.

Beatriz Corral
Employment Area