The Lithuanian Supreme Administrative Court (LVAT), after examining an administrative case regarding the dismissal of a person from their duties, ruled on Wednesday that the order to dismiss a border guard who refused to undergo a COVID-19 test was justified.
According to the press release issued by LVAT, the dispute in the administrative case arose from the legality of the order issued by the head of the State Border Guard Service (VSAT), as well as the obligation to pay the applicant, who is a border guard, for the time of forced quarantine and non-material damages.
The border guard was dismissed from his position as a specialist at the Kalvarija Border Post of the Varėna Border Unit of VSAT, without receiving any compensation, until he provided the results of a health check confirming that he had been tested for COVID-19 or a document stating that the tests were not being performed on him.
The applicant challenged the order of the head of VSAT in court, arguing that he was unlawfully dismissed from his current position. According to the border guard, he has the right to bodily integrity. He claimed that the order violated not only the Law on Prevention and Control of Communicable Diseases but also the Constitution.
The lower court dismissed the applicant’s complaint. Disagreeing with the court’s decision, the applicant filed an appeal with LVAT.
LVAT, after examining the administrative case, noted that under the Law on Prevention and Control of Communicable Diseases, an employee can be temporarily dismissed from work without pay in order to prevent the spread of infectious diseases and ensure public health and safety. The employee can only be reinstated once they have undergone testing for the contagious disease (which was done in this particular administrative case).
LVAT stated that the period during which an employee does not receive wages for being dismissed from work, because they refused to undergo mandatory health check or did not undergo the check for very important reasons, and there are no possibilities to work remotely or transfer to another position at the same workplace considering the nature of the work, depends on the employee themselves, i.e. when they fulfill their obligation to undergo the health check.
The court emphasized that protecting people’s health is a constitutionally important goal, a public interest. In order to provide a constitutional right to suitable, safe, and healthy work conditions, the legislator may establish certain conditions for the exercise of the right to freely choose work in workplaces where a sudden outbreak of an infectious disease has been identified.
LVAT concluded that the lower court lawfully and reasonably rejected the applicant’s claims, as personal responsibility and its consequences are not negated by the principle of solidarity in civil society. Since no unlawful actions were established, the claim for non-material damages was also rightfully rejected.
Considering these facts, LVAT dismissed the applicant’s appeal and left the appealed decision of the lower court unchanged.