Possibilities for regulating an employee’s personal life by the employer in relation to the employee’s health

02. 03. 2026

This article deals with the regulation of an employee’s leisure time, which the Labour Code refers to as rest time. In connection with the COVID-19 pandemic, the question became highly debated whether an employer may prohibit an employee from engaging in certain activities or visiting certain places because of the increased risk of infection associated with such activity or place, and thereby interfere with a period of time that does not fall directly under the employer’s control and during which the employer therefore cannot bind the employee by its instructions.

From the perspective of workplace health protection, such a power of the employer might appear highly effective, because employees would not, during their rest time, expose themselves to an excessive risk of COVID-19 infection which they might then bring into the workplace. It is common for workplaces also to include employees who themselves do not intend to expose themselves to an increased risk of infection in their private time and who expect others likewise to exercise a certain degree of prevention and restraint in their personal lives. As a result, the employer was often exposed not only to pressure arising from its preventive duty to ensure a working environment that does not endanger health and life, but also to pressure from more cautious employees who demanded that the employer adopt measures that would prevent the transfer of the risk of COVID-19 infection from employees’ personal lives into the workplace.

The Labour Code defines rest time in Section 78(1)(b) as “time which is not working time.” This is a negative definition, designating as rest time all of the employee’s time insofar as the employee is not performing an activity that the Labour Code expressly characterizes as working time. Working time is characterized by the fact that it is a period during which the employee is obliged to perform work determined for the employer, or at least to be ready to perform such work at the workplace.[1] The circumstances in which this duty arises are specified by the individual provisions of the Labour Code. Working time does not consist of any time during which the employee is merely present at the workplace, although earlier case law adhered to that view.[2] Over time, this approach proved too strict and severe toward employees, and the definition cited above was therefore adopted, under which, where the employee is not directly performing work, the employee must at least be prepared to do so and be waiting for an instruction from a superior employee to commence work, or for another circumstance upon which the employee will immediately begin to perform work.[3] It is stated that working time also includes periods in which the employee attends to natural biological needs or experiences a momentary loss of concentration, with reference to the principle of good morals.[4] Working time includes the duration of a shift and overtime work (Section 78(1)(c) and Section 78(1)(i) of the Labour Code). If the period of time that the employee is currently experiencing cannot, under the Labour Code, be designated as working time, that specific period may be regarded as rest time, and the employer has no right to require the employee to perform work, nor may it control the employee’s activities during such period.[5] The designation of this residual time of the employee presupposes that it should serve the employee primarily for the regeneration of working capacity and, further, typically for the employee’s private life, thereby enabling the employee to support family and social life. The fact that the employer cannot regulate or influence the employee’s choice as to how rest time is spent is typically illustrated by the example that an employee is entitled to use annual leave to perform work arising from another employment-law relationship, which admittedly undermines the very purpose of rest time, yet the employer has no legal instruments by which it could prevent such conduct.

The issue outlined in the introduction to this chapter was typically discussed in connection with an employee’s annual leave under Section 211 et seq. of the Labour Code. Annual leave may be described as a typical form of rest time, although rest time of the employee is by no means exhausted by this concept alone. The Labour Code also recognizes work breaks, uninterrupted daily rest between shifts, uninterrupted weekly rest, and non-working days, which include public holidays and the aforementioned uninterrupted weekly rest of the employee. Given that spending rest time outside the employer’s workplace is typical for all of the above forms of rest time except work breaks, which usually occur at the workplace, the following analysis, having regard to the theme and purpose of this chapter, will be limited only to those periods of rest during which the employee is not present at the employer’s workplace. Unless stated otherwise, what is said about annual leave, which is the principal object of examination, will apply also to other forms of rest time apart from the work breaks occurring at the employer’s workplace.

Annual leave became a matter of particular concern in connection with COVID-19 for the reason that it is often associated with employees spending their free time in foreign destinations, where the level of occurrence of infection may be at a different stage and where the risk of infection may therefore increase significantly, with the possible subsequent spread of infection into the workplace. This is, however, a risk that occurs whenever an employee travels to countries with widespread COVID-19 infection, regardless of whether the employee leaves the Czech Republic while taking annual leave or for other reasons during a period of rest. For these purposes, the Ministry of Health, at regular intervals in connection with the spread of COVID-19 infection, issued communications setting out a list of countries or parts thereof with low, medium, and high risk of COVID-19 infection, and due to the publication of countries on a map in green, orange, and red, the term “traffic-light system” came into use.

It follows from the currently effective legal framework of the Labour Code that employers have no instrument by which to regulate the leisure time of employees, even though this often makes it more difficult for them to comply with the obligations they must fulfil as employers, above all obligations in the field of occupational health and safety. Any attempt by the employer to regulate employees’ free time will typically be preceded by information about how the employee intends to spend that free time. In this connection, this involves the processing of personal data, which is the subject of analysis in another article, and the following discussion will therefore focus solely on the regulation of free time itself, regardless of the particular means by which that regulation might be attempted.

Annual leave is a form of rest time intended for the employee’s long-term regeneration, and for this purpose Section 217(1) of the Labour Code provides that the employee must take at least two weeks of leave in one continuous period. As has already been noted above, annual leave is not working time, and the employer therefore has no possibility of determining or controlling where the employee spends leave. Likewise, the employer may not require the employee to spend leave in a particular way. The opposite conclusion is not envisaged by the current legal framework, or by the Labour Code. In my view, this conclusion is correct even during the COVID-19 pandemic, and that situation associated with infection by COVID-19 cannot legitimize the opposite conclusion. In my opinion, any regulation of employees’ leisure time should not be undertaken by employers, but, where appropriate, by public authorities themselves. Any prohibition on leaving the Czech Republic for holiday purposes undoubtedly constitutes a major interference with civil rights, and Article 14(2) of the Charter of Fundamental Rights and Freedoms already prohibits such restriction. This is connected with the right of the holders of this right to demand that they be allowed to travel abroad, although that right is not absolute. I am of the opinion that it is far more appropriate to leave any regulation of prohibitions on foreign travel, as well as regulation of the employee’s free time during rest periods, to public authority, because this area is much closer to public law than to labour law as a branch of private law based on the autonomy of the will. Public authority, by means of public law, is capable of deciding more effectively on the activities of its citizens, as well as of other persons present on the territory of the Czech Republic, including with regard to international assistance between states in the event of foreign travel.[6] Where reference was made above to the employer’s other duties, this was intended to mean above all the employer’s preventive duty in the field of occupational health and safety, which has already been discussed and which may be very negatively affected by the employer’s inability to regulate employees’ leisure time. It may therefore be concluded that, de lege lata, where there is no special legal regulation in the field of labour law concerning regulation of the employee’s leisure time—and where even the Pandemic Act did not introduce such regulation—it is the employer’s duty to respect the employee’s choice as to how time outside the workplace is spent.

The principle of equal treatment and prohibition of discrimination

The employee’s leisure time cannot be regulated by the employer even indirectly. This could occur, for example, in situations where the employer advantaged those employees who complied with its instructions as to how free time should be spent, or disadvantaged those who failed to respect such instructions. That would amount to a breach of the duty of equal treatment and the prohibition of discrimination against employees, expressed in Section 1a(1)(e) of the Labour Code as a fundamental principle of labour law. The inspiration for this fundamental principle of labour law is the first sentence of Article 1 of the Charter of Fundamental Rights and Freedoms, according to which all people are free and equal in dignity and in rights. This fundamental right[7] is further implemented for the purposes of employment-law relationships by the Anti-Discrimination Act,[8] which in Sections 10 and 11 lays down mechanisms of protection against impermissible discrimination. Section 10(1) of the Anti-Discrimination Act establishes the employee’s right to seek cessation of discriminatory conduct, removal of its consequences, and the provision of appropriate satisfaction. In such a case, it will be for the employee, in accordance with the burden of allegation and the burden of proof, to establish that, through the employer’s conduct, the employee was or still is being disadvantaged in comparison with other employees who complied with the employer’s instructions concerning the spending of free time. However, the employee is not required to allege and prove that the motive for the differential treatment, by which the employer advantages other employees or disadvantages that employee in relation to them, is a legally prohibited discriminatory ground. The civil court will regard this as proven by virtue of Section 133a(a) of the Code of Civil Procedure, unless the employer proves that, in relation to that employee, it has not violated, or is not violating, the principle of equal treatment for discriminatory reasons.[9] This approach, described in doctrine and case law as a sharing of the burden of proof,[10] takes into account above all the employee’s limited evidentiary possibilities in proving that the differential treatment occurred precisely because of a reason considered discriminatory. It is the correct approach to require the employer to justify such differential treatment and to prove that it has a legitimate basis and does not consist of differential treatment on grounds of discrimination. It will therefore be for the employer to prove that any differential treatment of employees who failed to comply with the employer’s instructions as to the spending of free time has a legitimate core. This legitimacy will be found above all where the aim is to prevent the occurrence or spread of COVID-19 infection in the workplace and not merely to retaliate for failure to obey an instruction. One such legitimate measure would be, for example, a measure by which an employee is separated from other workers for a certain period after returning from holiday, assigned a special place in the workplace, or subjected to different occupational health and safety instructions and to different obligations concerning the use of individual protective equipment. The fundamental principle expressed in Section 1a(1)(e) of the Labour Code is further implemented by Section 16 of the Labour Code. The requirement of equal treatment of employees is broader in its application than the prohibition of discrimination, having regard to the need for discriminatory grounds to be present in the case of discrimination, on the basis of which the employee is treated differently.[11] These two requirements must be interpreted together, since objectively it will not always be possible to treat all employees identically. Under Section 16(1) of the Labour Code, employers are obliged to ensure equal treatment of all employees with regard to their working conditions, remuneration, and the provision of other pecuniary benefits and benefits of pecuniary value, vocational training, and opportunities to achieve promotion or other advancement in employment. This also includes dismissal procedures, as was recognized by the Constitutional Court of the Czech Republic in its judgment Case No. II. ÚS 1609/08 of 9 July 2009 in response to the judgment of the Court of Justice of the European Union in Case C-411/05, Félix Palacios de la Villa, of 16 October 2007.

If the employer attempted to advantage or disadvantage certain employees solely on the basis of how they spent their rest time, this would constitute a breach of the right to equal treatment and of the prohibition of discrimination. This conclusion could be affected by the negative definition of discrimination in Section 16(4) of the Labour Code, according to which differential treatment does not constitute discrimination where it is an essential requirement necessary for the performance of work, which may apparently include only measures aimed at protecting life and health in the workplace. The list of discriminatory grounds in Section 16(2) is illustrative, not exhaustive; it is not possible to create a closed list of all possible reasons on the basis of which employees may be treated differently, since it is impossible to predict all situations that may arise. A typical example of this is precisely the way in which employees spend their free time. It may therefore undoubtedly be inferred that even failure to comply with the employer’s instruction concerning the employee’s rest time may be a ground of discrimination. Likewise, such conduct of the employee may in certain cases be evaluated as an expression of opinion concerning issues widely discussed in society in connection with various measures adopted by public authorities, which may in turn also interfere with freedom of expression under Article 17(1) of the Charter.

Partial conclusion

It may therefore be stated generally that the employer cannot regulate the leisure activities of employees in an effort to prevent the spread of a contagious infectious disease. No such right of the employer can be inferred, even taking into account the public interest in the life and health of employees, or of the population as a whole. There is no room even for the application of analogy, since a similar situation is not addressed in labour law; and even if it were, the application of analogy in such cases would be highly problematic because of the interference with the employees’ fundamental rights, and in these circumstances a restrained approach is appropriate.

If the employee, during rest time, engaged in an activity or stayed in a place that increased the risk of infection with an infectious disease, the employer may, in a certain manner, take this into account in its subsequent treatment of that employee. The employer is therefore limited only to a subsequent reaction, in the form of legitimate restrictions applied to the employee who, because of the chosen way of spending free time, has become “more risky.” However, the employer may not in advance prohibit or order a particular manner of spending free time. Even in such a situation, however, the employer is obliged to prove that any differential treatment of such employees pursues a legitimate purpose, above all the protection of life and health in the workplace, and does not constitute a punitive response against those employees.

This article is written according to the legal framework as of 1 January 2022.

Citace:

^[1] Rozsudek ze dne 9. září 2003, Landeshauptstadt Kiel v. Norbert Jaeger, C-151/02.

^[2] Rozsudek ze dne 3. října 2000, Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana, C-303/98.

^[3] Například lékař u záchranné zdravotní služby čekající na výjezd.

^[4] ŠTEFKO, Martin. § 78 [Základní pojmy]. In: BĚLINA, Miroslav, DRÁPAL, Ljubomír a kol. Zákoník práce. 3. vydání. Praha: C. H. Beck, 2019, s. 475.

^[5] HŮRKA, Petr a kol. Pracovní právo. 3. vydání. Plzeň: Vydavatelství a nakladatelství Aleš Čeněk, 2020, 245 s.

^[6] Např. usnesení vlády ze dne 18. března 2021, č. 299, o přijetí krizového opatření.

^[7] Nález Ústavního soudu ze dne 21. ledna 2003, sp. zn. Pl. ÚS 15/02.

^[8] § 17 ZP.

^[9] Rozsudek Nejvyššího soudu ze dne 11.11.2009, sp. zn. 21 Cdo 246/2008.

^[10] Nález Ústavního soudu ze dne 26. dubna 2006, sp. zn. Pl. ÚS 37/04.

^[11] ŠTEFKO, Martin. § 16 [Rovné zacházení se zaměstnanci, zákaz diskriminace]. In: BĚLINA, Miroslav, DRÁPAL, Ljubomír a kol. Zákoník práce. 3. vydání. Praha: C. H. Beck, 2019, s. 76.

All articles