COVID-19 vaccination: What does it mean for employers?

Compulsory Workplace Vaccinations 

As the Federal Government is preparing to release COVID-19 vaccines to the public, employers across the nation must start to consider whether "to jab or not to jab". The lawfulness of mandatory vaccinations will vary from case to case, but policies and procedures that are reasonable and necessary to satisfy workplace safety requirements will always flow from a proper assessment of risk.
Employers and principals have overarching duties to ensure so far as reasonably practicable the health and safety of their workers, their work environment, and other persons who may be affected by their operations. 

Employees and other workers are not without safety duties too – they must obey any reasonable safety policy, procedure or directions; and must take reasonable care that they do not adversely affect the health and safety of others. 

Courts have previously considered directions to undertake medical examinations to assess fitness for work, directions to stay away from the workplace to prevent the spreading of illnesses, and directions to fill out COVID declarations all as lawful and reasonable directions. 

The difficulty employers will be faced with is if one or more of its workers refuse the vaccination. There are certain circumstances where workers may legitimately refuse. Most relevantly, if there are medical reasons or advice showing that the worker should not be inoculated. The worker may also refuse the injection on the grounds of a religion or religious belief.

More borderline cases may involve the refusal of workers who are conscientious objectors or 'anti-vaxxers'. There is not a general right that these workers can rely on to lawfully defend their objection. However, it is important that all decision making relating to workplace vaccinations follows a clear and documented approach of risk analysis.

Risk Assessments
All employers and principals reviewing their actual or potential vaccination programs should first set out the risks and challenges they face. There are risks posed by a wholly unvaccinated workforce, a partially unvaccinated workforce and even a wholly vaccinated workforce (consider worker choice and workplace harmony). Any worker information collected or produced under vaccination programs should also be handled sensitively and in compliance with the privacy laws. 

Appropriate control measures should then be considered. This is not limited to vaccinations. Other, less restrictive measures may be available to control the risk, for example, PPE, work zones, cleaning and training. 

What control measures are reasonable and appropriate will vary between workplaces and according to the type of work performed. 

A vital part of the analysis will then be considering what disciplinary measures are appropriate. Soft approaches may not adequately encourage participation, while harsh approaches may not be enforceable or defensible as reasonable management action. 

Case law
Currently there are no tribunal or court judgements directly testing the issue of mandatory vaccinations. However, opinions of Fair Work Commission members are starting to be formed. 

In Arnold v Goodstart Early Learning [2020] FWC 6083, Deputy President Asbury was presented with an unfair dismissal applicant who was fired from a childcare and kindergarten business for refusing a mandated flu shot. The employer's direction involved a process by which exemptions could be sought for medical grounds. The employee's refusal did not appear to involve a medical reason or health related issue, so she was dismissed.

The ex-employee's application was filed out of time and ultimately dismissed for this reason, but the Deputy President still made some general observations about vaccinations in the context of a high-risk workplace: 

“While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.” (emphasis added)

Glover v Ozcare [2021] FWC 231 also involved the dismissal of a worker for refusing the flu shot. The 64-year-old worker declined to participate in the program on apparent medical grounds, claiming she suffered anaphalaxis after receiving a flu shot when she was seven. The ex-employee considered that working safely with clients could be reasonably controlled with PPE and other safety precautions.

Commissioner Hunt said that the legality of enforcing flu vaccinations will depend on each case, but considering the COVID pandemic it may not be an unreasonable requirement, having made the following observations:

“In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.

It is not inconceivable that come November 2021, employers of men engaged to play the role of Santa Clause in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated at least against influenza, and if a vaccination for COVID-19 is available, that too. The employer in those scenarios, where they are not mandated to provide social distancing, may decide at their election that vaccinations of their employees are now an inherent requirement of the job. It may be that a court or tribunal is tasked with determining whether the employer’s direction is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community.” (emphasis added)

What to look out for
The substantive outcome in Glover v Ozcare is forthcoming and is expected to offer employers substantial guidance for their vaccination policies. 

As the rollout of the COVID vaccination progresses, guidance may also be offered from governmental authorities on how workplaces should proceed. 

Specific worker refusal should be handled delicately and on a case-by-case basis. 

Can employers insist an employee is vaccinated?

Vaccination in the workplace is sometimes compulsory by virtue of a regulation, sometimes recommended by occupational doctors and implemented by the employer as part of its risk prevention mission (Art. R. 4426-6 of the Labour Code). It is an element of the prevention policy, in particular of occupational risks. 

But the French government has not legislated to make the COVID-19 vaccine compulsory. 

As a result, employers cannot force an employee to provide the evidence that they obtained the vaccine.  However, employers can strongly encourage employees to be vaccinated. They can organise a vaccine campaign within the workplace, by asking the occupational doctor for instance to deliver the vaccine.

However, taking disciplinary action or even dismissing an employee for failing to be vaccinated would not be valid.  

What discrimination issues might arise?

It would not be usual to draft a vaccination policy relating to COVID-19. The State decides which population can have the vaccine, at which time period, and the employees are free to refuse to be vaccinated against COVID-19.

Discussions are taking place to decide whether the vaccine will be mandatory in limited circumstances, and in particular if the vaccine is required to travel. If it were to be the case, the refusal to be vaccinated could have an impact on the employee's work. But it is too early at this stage to consider taking any measure against an employee who would refuse to be vaccinated. 

What steps should employers be taking

Every employer must ensure, so far as is reasonably practicable, the health, safety and welfare of employees at work. 

Government health protocols in the workplace require employers to take steps to make their workplaces COVID-secure and the guidance may be updated to reflect the vaccination campaign, if any. 
In practice, as the vaccine is not mandatory, and is even not available at the moment to most working people, the guidance on vaccines campaign is very limited. Either the employer will ask for the assistance of the occupational doctor to organise the vaccination, or the employer can request the assistance of a specialised service provider. 

What if an employee refuses to be vaccinated?

Vaccination is not mandatory, so at this stage employers are unable to make a decision based on the employee's refusal to get vaccinated. We have yet to see how courts and tribunals will deal with potential unfair dismissal and discrimination cases in this context and are unlikely to do so for many months.

Can employers refuse entry to the workplace if an employee has not been vaccinated?  

Employers have a duty of care to protect the health and safety of their workforce at work. Refusing entry to an employee who has not been vaccinated is unlikely to be viewed as a reasonable step in fulfilling that duty if the vaccine is not mandatory and if the employee does not work in a particularly risky environment which legally requires such vaccine. 

What are the data protection implications? 

The vaccination is a private and sensitive data, so that the employer is not supposed to be provided with this information. 

When organising a vaccination campaign, the employer cannot obtain any result, and cannot therefore process such information.

Conclusion 

This is a fast moving and complex issue for employers. The vaccination of working people is very limited as of date. The government has not issued any guidance in this respect and maintains that the vaccination is not mandatory. But employers can consider organising vaccination campaigns, in a few months, when the vaccine will be available to a larger number of individuals.

News of effective COVID-19 vaccines certainly provided the much needed light at the end of the tunnel. As the government embarks on the mass vaccination programme in 2021, we explore some of the key legal issues employers will be facing. 

Can employers insist an employee is vaccinated?

Of course, an employer can encourage their employees to be vaccinated. But the key question is whether they can also force the employees against their will without any legal backup of a general obligation to vaccinate. 

Vaccination, even if it seems particularly important due to the nature of the employee's activity (contact with risk groups), affects the protected core of constitutional rights in Germany. The physical integrity of the employee, respect for his or her right of personality (privacy), and under certain circumstances freedom of belief and conscience come into conflict with the fundamental rights to economic activity and the employer's duties to protect his or her other employees. As a result, any unilateral instruction to get vaccinated is predominantly considered invalid. Also, any vaccination is bodily harm that requires justifiable consent (by law or due to a medical emergency). No doctor will therefore carry out a vaccination against the employee's will.

For certain occupational groups (employees in hospitals, doctors' surgeries, etc.), however, vaccinations may possibly become a de facto obligation. According to the regulations of the Infection Protection Act, the employer in various areas of the health service can demand an immunity certificate, i.e. a certificate of successful vaccination upon employment. However, the proven immunity must be necessary in view of the job in question. Milder measures, e.g. compliance with certain hygiene measures, must not be sufficient. Whether the currently existing protective measures, including the use of protective clothing, can be regarded as milder means in view of the high risk of infection and spread of the coronavirus, despite all protective concepts, seems questionable.

Therefore, this rule applies only to a very small group of employees. 

Separate from the question of whether employers can legally enforce vaccination of their workers is the question of whether they can take action against those who refuse vaccination. We comment on this below.

What steps should employers be taking?

The employer should continue to create the framework conditions for the prevention of infections within the framework of their duty of care and occupational safety. The protection and hygiene concepts should continue to be observed and adapted to the respective regulations and specifications of the employers' liability insurance associations. Please note that due to current regulations, the employer must offer its employees the opportunity to work in the home office. Employees shall make use of this option. Employers may only deviate for urgent operational reasons.  

Furthermore, the employer should consider providing vaccination opportunities as soon as this is possible (and not already done through the first wave of vaccination). 

Since a unilateral order for vaccination by the employer is highly questionable, there are considerations to supplement the employment contract in such a way that the employee agrees to be vaccinated. Again, it is doubtful whether such a clause would be valid as the employer would dictate such clause from a position of power and an employee would not be able to defend him or herself against this. However, in individual cases or for certain groups of employees, proof of immunity may be required before starting work, which could be included in the employment contract.

What if an employee refuses to be vaccinated?

Employees who refuse to be vaccinated can under certain circumstances be dismissed on personal grounds if the reduced risk of infecting third parties significantly contributes to the personal suitability for the agreed job (staff in nursing homes, hospitals, etc.) and thus the interests of the employer are affected. Of course, this presupposes that a vaccinated person actually poses no or a demonstrably reduced risk of infection, which does not seem to be clear at present. 

Under these conditions, dismissal for personal reasons is likely to be given at least to those employees who are in daily contact with risk groups and for whom there is no free alternative workplace. However, a detailed and separate legal examination of each case is required to determine whether such dismissal meets the respective legal requirements for dismissal.  

Can employers refuse entry to the workplace if an employee has not been vaccinated? 

Generally, employees have the right to actual employment. However, this right is not applicable if there are overriding interests on the part of the employer that are worth protecting. This can arise from the employer's duty to protect its other employees and its customers from health risks. This in turn presupposes that vaccinated persons are not at risk of infection or that the risk of infection is significantly reduced, i.e. they cannot be carriers of the COVID-19 virus. In all other respects, the circumstances of the individual case must be taken into account:

• How high is the risk of infection of third parties if the employee goes about his or her regular work without appropriate vaccination protection? 
• Can appropriate protective measures be implemented to prevent infection of others? 
• How elaborate are these and what costs are they associated with? 

In this context, the evaluation of a job with direct customer contact will certainly be different than the evaluation of a job without contact with other persons. It will certainly also have to be examined whether the employer may be obliged to provide a home office in order to prevent the infection of others (a respective legal obligation is currently limited until 15 March 2021). This would in effect create an otherwise non-existent right to a home office for the employee who is not willing to be vaccinated. 

If a balancing of interests concludes that the employer's interest in employing only vaccinated employees prevails the employee's right to employment, the second question is whether they must pay any remuneration although not receiving any work results. If the employee cannot present comprehensible reasons for his or her refusal to vaccinate that are worthy of protection, there is a strong argument for denying such claim to remuneration. 

Overall, however, the hurdles will be very high depending on the respective job. Moreover, the practical problem for employers is that they often do not know whether an employee has been vaccinated (see data protection considerations below).

What discrimination issues might arise?

In addition to this de facto employment ban, milder measures are also conceivable, in which employers differentiate between vaccinated and non-vaccinated employees. Such different treatment can extend to all areas of working life: For example, access to company canteens for vaccinated workers only, different working conditions for vaccinated and non-vaccinated workers, etc.

Any differentiation generally needs an objective justification, such as medical reasons as well as reasons of occupational health and safety, whereby medical proof is required that the vaccinated employee is no longer contagious. Please note that the different treatment can indirectly affect particular protected characteristics (e.g. age, disability, gender). This would be the case, for example, if younger people are not yet vaccinated (due to a lack of sufficient vaccine), while older people are, but also if certain groups such as disabled people or pregnant women cannot be vaccinated for medical reasons. Such different treatment would only be permissible if it is justified by a legitimate aim and no milder means to achieve this aim are conceivable.

In any case, the employer should be very careful, if they plan on any different treatment of vaccinated and non-vaccinated persons. At least in the first months of this year, when vaccination is only available for a small proportion of the population, different treatment (and especially the granting of privileges to the vaccinated) is not (yet) recommended.

What are the data protection implications? 

In any case, all of the above requires that the employer knows whether the employee has (already) been vaccinated. This information, however, is particularly protected personal data, as it concerns health data. In this respect, the employer must ensure that adequate reasons for the collection and processing of the data are clearly defined and documented. Likewise, the collection of the data must be transparent and proportionate.

A collection of data should in any case only begin when this is relevant, especially because (positive) consequences result from the fact that the employee has been vaccinated. However, it would probably go too far to survey all workers. Rather, there should be a system whereby workers who are vaccinated can state this, but there is no obligation to provide information. The employer could consider all those who have not given this information - according to the principles shown – as unvaccinated (if any differentiation allowed). In this respect, the employee retains the freedom not to inform the employer about the vaccination status, but must then also accept the consequences.

Pursuant to Section 23a Infection Control Act, there is a special provision for employees in particularly sensitive areas such as hospitals, doctors' and dentists' practices, rehabilitation facilities, but also rescue services and outpatient nursing services with intensive care. The processing of vaccination status is always permissible here, insofar as this is relevant to the type and manner of employment and (in the case of applicants) to the hiring itself. 

Conclusion 

Many questions of labour law are currently still unanswered. Most of them are likely to depend decisively on whether a vaccinated person can still be a carrier of the virus and thus continue to pose a risk of infection. However, the actual pressure will increase significantly - irrespective of the employment relationship - at the latest when universal vaccination is possible and (other) companies begin to differentiate according to vaccination status, e.g. in access to benefits. 

The rollout of the COVID-19 vaccine is currently underway in Ireland. Many employers may be wondering what this means for them and what are their obligations under Irish employment law.

Can employers insist an employee is vaccinated?

An employer may encourage employees to get vaccinated, however, employers cannot insist that employees are vaccinated. 

Under the Irish Constitution, there is a fundamental right to bodily integrity and autonomy. This includes their right to decline or refuse medical treatment. Therefore, in the absence of any specific legislation requiring employees to take the COVID-19 vaccine, there is no legal basis for an employer to adopt a mandatory vaccination policy and any requirement for an employee to get vaccinated would likely be an infringement of their rights under the Constitution. 

What discrimination issues might arise?

The Employment Equality Acts 1998-2015 (EEA) protect employees against discrimination on nine protected grounds, including age, gender, race, religion, disability, family status, civil status, sexual orientation or membership of the traveller community. 

Some people may choose not to get the vaccine due to pregnancy or fertility concerns (gender/ family status), their age or religion, or as a result of a disability. In the event those employees are treated differently or less favourably than other colleagues who have received the vaccination, they could bring a claim under the Employment Equality Acts alleging discrimination. 

Mandatory vaccination policies may, therefore, be indirectly discriminatory and unlawful unless they can be objectively justified.

What steps should employers be taking?

• Employers should carry out or update their risk assessment and update any existing COVID-19 response plan and safety statements to take account of employees who have received the COVID-19 vaccine. 
• Consider if working from home is to be facilitated going forward (where applicable) and develop or update current policies in relation to working from home. 
• Continue to monitor public health guidance for information in relation to the vaccine and any health and safety measures recommended for a safe return to work and communicate with employees in relation to any updates on internal health and safety measures being adapted. 

Can employers refuse entry to the workplace if an employee has not been vaccinated? 

For employees who do not wish to be vaccinated, employers should consider alternative working arrangements, such as allowing employees to work from home. 

Where working from home is not feasible, due to the nature of the role for example, employers will need to consider other options or measures that can be put in place to limit the spread of COVID-19 to protect employees, such as additional social distancing and hygiene measures. 

Employers might also consider moving employees to different roles, with their agreement, in the case of employees who are not vaccinated.   

What are the data protection implications? 

In addition to employment law considerations, employers should also be mindful of their obligations under data protection legislation when it comes to employees and the COVID-19 vaccination. 

Information regarding whether an employee has or has not been vaccinated is medical data which is considered sensitive personal data/ special category personal data and is therefore subject to stricter rules in terms of its processing under the Data Protection Acts 1988-2018 and GDPR.

Employers may argue that processing such information is necessary to comply with their legal obligations under the Safety, Health and Welfare at Work Act 2005, to ensure the health and safety of their employees at work. It is not yet clear, however, if this will be sufficient justification for such processing. The Data Protection Commission (DPC) previously issued guidance on mandatory temperature testing of employees, therefore, it is hoped that the DPC will also issue guidance in relation to the processing of vaccine related data for employees. 

Conclusion 

This is a complex and fast moving issue for employers. While the rollout of the vaccine throughout the country will take some time, it is important for employers to continue monitoring public health advice closely to start considering what impact the vaccination programme may have in terms of health and safety in the workplace. 

During the last few weeks, the administration of COVID-19 vaccination programme started in Italy and one of key topics under discussion is how employers should react if an employee refuses the COVID-19 vaccination. Opinion is divided: some support the employer's right to manage and safeguard their businesses and staff whereas others tend towards protecting employees' rights and freedoms.

Can employers insist an employee is vaccinated?

This is a very complex matter requiring a brief analysis of several pieces of legislation and Italian principles.

First, the Italian Constitution states that "our health is an individual right and it is an interest of the community […] no one can be obliged to a specific health treatment unless in the case this is set out by a piece of legislation".

At the same time, the employer has a specific health and safety obligation towards its workforce under article 2087 of the Italian Civil Code ("the employer must implement in the working environment all measures that – in the light with the specific type of working activity, experience and technical development – are requested for the safeguard of the workforce' physical and moral safety"). The employer is required to implement any and all useful measures for the purpose of preventing both risks linked to and arising from the working environment and those coming from external sources which have an impact on the workplace.

Furthermore, Legislative Decree no. 81/2008 (Health and Safety in the Workplace Act) clarifies that the employer has a specific obligation towards the employees.  Indeed, in line with the company's  medical practitioner's advice, employers must implement specific protection measures in favour of those employees requiring special protection measures because of individual health reasons. 

The employer is required to make available to certain employees (to be identified by applying objective criteria) effective vaccinations, to the extent this can be identified as a special protection measure taking into account the employee's role / tasks assigned.

At the same time, employees have a specific obligation to take care of both their own health and safety and the health and safety of all individuals present in the workplace (e.g., colleagues, suppliers, customers, etc.), who may be adversely affected by the employee's actions or omissions. This obligation must be implemented in accordance with the employee's training, instructions and measures provided with the employer.

Under the Health and Safety in the Workplace Act, an employee is also required to:

• contribute, together with the employer, to the compliance of health and safety in the workplace obligation, and 
• comply with all instructions and guidelines provided by the employer for the individual and collective protection.

While employers cannot physically force employees to be vaccinated against Covid-19, they can require them to be vaccinated on the recommendation of their workplace medical practitioner (see under "What steps should employers be taking?" below).

What discrimination issues might arise?

The employer cannot investigate the reason why an employee is refusing vaccination. In addition to data protection rules, employers cannot directly or through a third person ask questions, on hiring or during the employment relationship, about an employee's political, religious or union opinions nor on any other fact not relevant for the evaluation of the employee's professional suitability for the role. Employers who breach this rule face criminal prosecution. Employers need to be aware that the vaccine will not be suitable for all and some employees will have perfectly legitimate reasons for refusing vaccination, such as the testing process, their health, pregnancy. Employees must be protected against any subsequent possible direct/indirect discrimination in terms of e.g., age discrimination, disability / health discrimination, personal belief discrimination, etc.

What steps should employers be taking?

In addition to the legal principles summarised above, the employer is also required to comply with all other rules issued by competent authorities for containing and limiting the spread of COVID-19. 
In particular, starting from March 2020, specific pieces of legislation and official guidelines have been issued by the competent authorities for the purpose of identifying and suggesting measures for limiting COVID-19 contagion, in the workplace in particular (among others, the so-called "Agreed Protocol regulating measures for containing and limiting the COVID-19 spread in the workplaces").

Employers are required to identify, supply and (where needed) impose on their workforce suitable protection measures for the safeguarding and protecting the health and safety of employees and other persons (present in the workplace). At the same time, the employer is required to regulate compliance with the protection measures (including their replacement), and to sanction anyone who any breaches company rules issued in this regard. 

Taking into account the above summarised legislative picture and in the absence of specific legal provisions imposing the COVID-19 vaccination, the employer is required to evaluate:

• whether the administration of a vaccine is – based on the company practitioner's advice – a protective measure to be implemented (also supplementing other measures, as the case might be); and
• which the employees (or class of employees) require vaccination, due to their position, role, tasks assigned. 

In light of the company's medical practitioner's advice and subject to all other requirements under the Health and Safety in the Workplace Act, the employer must also update their evaluation risks assessment document and, as the case might be, issue a specific COVID-19 vaccination policy.

We have to stress that the administration of a vaccine could cause several issues, even if it were supported by the company medical practitioner's advice.

What if an employee refuses to be vaccinated? 

Indeed, even if vaccination is offer free and the employee is provided with a full information notice, he/she could refuse the vaccine (or a booster dose). In the case of refusal, the employer must:

• evaluate whether the employee is actually exposed to a contagion risk, based on their position and connected duties and whether the vaccine refusal could cause their inability to perform their duties and tasks (this is also subject to the company's medical practitioner's advice);
• evaluate whether it is possible to have the employee performing their duties and tasks in a different way (e.g., working remotely), or assign the employee to different duties and tasks (being such change implemented in accordance with article 2103 of the Italian Civil code) if available.

Can employers refuse entry to the workplace if an employee has not been vaccinated?  

Employers have a duty of care to protect the health and safety of their workforce at work. Refusing entry to an employee who has not been vaccinated should only be used as a last resort, once all the alternatives mentioned above have been fully considered and implemented.

As we mention above, each employee has a specific obligation to take care of both their health and safety and the health and safety of all individuals present in the workplace, who can be impacted by the employee's actions or omissions.

What are the data protection implications? 

From a data protection perspective, the employer cannot investigate the reasons behind the employee's refusal. At the same time, any employee's data relating to the vaccination must be processed in accordance with GDPR rules, Italian legislation and Data Protection Authority's guide-lines.

Conclusion 

It is possible that employers may be able to justify terminating the employment contract of employees who refuse the vaccination if – in the light of the outcome of the investigation and evaluation process referred to above – there are no alternative solutions to be offered to the employee.

However, even if termination of the employment contract is a possible solution in principle, it could raise some issues for the employer. The employee could challenge the dismissal, arguing that the administration of a vaccination (COVID-19 vaccination in this case) is not mandatory; the Italian State imposed certain vaccines in the past but COVID-19 vaccination is not included in the list.
Furthermore, the employee could argue that their inability to work is temporary because, for example, they are entitled to a different measure (e.g. paid or unpaid leave) instead of dismissal as a consequence of their refusal of the vaccine.  

Court decisions are likely to be issued on this matter in the coming months for the purpose of ascertaining whether such kind of dismissal is justified or not. At the same time, it is desirable that specific and official guidelines be issued on this matter, so as to limit further (negative) consequences of the COVID-19 epidemiologic emergency on the economics and on both employers' and employees' positions in particular. 

News of COVID-19 vaccines has become one of the main subjects in today's world. At the end of December 2020 the Polish government introduced a national programme of non-obligatory vaccination. Polish citizens have the opportunity to be vaccinated in four consecutive groups based on the criteria of age and exposure to the virus. 

Can employers insist an employee is vaccinated?

The Polish government did not decide to make the vaccine compulsory which means that each person has a right to decide if he or she wants to be vaccinated. The vaccine is currently and with probability verging on certainty, will stay non-compulsory. Many employers look forward to the vaccination of their employees which will result not only in their own safety but also the safety of their work colleagues. 

It needs to be clearly underlined that lack of legislation regarding compulsory vaccination means there is no possibility of forcing an employee to take the vaccine. If there is no act specifying the obligation to take vaccination then an employer cannot force it on an employee nor take any actions against an employee who refuses to be vaccinated. Furthermore, there is no clear legal basis to obtain information from the employee whether the employee has been vaccinated or not. The only thing which an employer can do is to promote the idea of vaccination in the workplace and encourage employees to get vaccinated.

What discrimination issues might arise?

The issue of employers making the vaccination obligatory may lead to many problems regarding the discrimination aspects. Some employees may have reasons not to take the vaccination and their decision must be respected by the employer.

Introduction of such an obligation in the workplace may result in various types of discrimination, of both direct and indirect character:

• Disability discrimination - employees who suffer from specific types of illnesses may have no possibility of being vaccinated since the vaccination will not be suitable for them due to their medical condition (for example employees with severe allergies). 
• Age discrimination – given the fact that the process of vaccination is divided into periods in which people of certain age can be vaccinated, the obligation to be vaccinated may result in age based discrimination. 
• Religion or belief discrimination - certain employees may refuse to take vaccination because of their beliefs. Pursuant to the provisions of the Labour Code an employer cannot take any actions which will result in religion or belief discrimination.

Employers should take into consideration the above issues and bear in mind that taking any legal actions against employees who refuse the vaccine may lead to discrimination claims.

What steps should employers be taking?

Employers may encourage employees to be vaccinated. It can be executed through information, awareness-raising campaigns about the benefits of vaccination and the risks of exposure to the virus for those who do not get vaccinated. The above actions may result in an increasing number of employees who will change their mind about being vaccinated. In addition to that, employers can support employees in obtaining access to the vaccine, if possible.

What if an employee refuses to be vaccinated?

As set out above, the vaccine is not obligatory which means that everyone should make an independent choice whether to be vaccinated or not. An employer cannot take any legal action against employees who do not intend to vaccinate and cannot put any pressure on them.

An employee who is vaccinated must be treated the same way as employees who refuse to be vaccinated. A vaccinated employee must not be granted any special benefits as it may result in discrimination. 

The matter of anti-coronavirus vaccination has not been analysed by Polish courts yet, however, there are court rulings pertaining to other types of vaccination e.g. the decision of the Provincial Administrative Court in Białystok of January 30, 2020 (II SA/Bk 869/19). The court stated that no one has the right to force an employee to protect his or her health by imposing an obligation of vaccination. We can expect that the court rulings regarding COVID-19 vaccination will be similar.

Can employers refuse entry to the workplace if an employee has not been vaccinated?  

An employer cannot refuse entry to the workplace if an employee has not been vaccinated. An employer cannot make any internal regulations or rules regarding the need for vaccination. Internal regulations of the workplace need to comply with generally applicable law. 

A similar question was raised in relation to the possibility of checking employees' temperatures before entering a workplace in the period of the pandemic. The Polish Data Protection Authority took a position that such activity is legal only if it is conducted based on instructions from the sanitary inspector. However, many employers did measure employees' temperatures or interviewed them in order to exclude the risk of letting an infected person into the work premises. They justified such actions based on employers' general obligations of ensuring a healthy and safe work environment. It is possible that certain employers will collect the data regarding vaccinated employees and take decisions regarding organisation of work based on this data using the same justification, in spite of serious legal controversies around this idea. 

What are the data protection implications?

In order to create a safe workplace employers would like to know whether employees have been vaccinated. Polish Labour Code defines clearly the scope of candidates or employees' data which can be processed by the employer. As a principle, the employer is not authorised to process information regarding employees' health, apart from the information regarding whether the employees' health condition allows him/her to work in a defined job position. The information regarding COVID-19 vaccination goes beyond the scope of data which can be processed by the employer. Such view is presented also by the Polish Ombudsman Pursuant to the Polish Labour Code, the candidate/employee may provide the employer with the information concerning his/her health upon giving consent at his/her own initiative. However, the Polish Data Protection Authority, as well as Polish courts are sceptical about the possibility of an employee's initiative which is purely his/her own and free from any pressure from the employer's side, due to the imbalance of power which is an inherent feature of the employment relationship.

Conclusion

It seems reasonable to expect that employees, especially those working closely with other people, get vaccinated because of the high risk of disease transmission. However, such obligation is not imposed by currently binding provisions of law. Currently, the best solution for employers is to create an awareness-raising campaign about the benefits of vaccination and the risks of exposure to the virus for those who do not vaccinate. Last but not least, employers can support employees in obtaining access to the vaccine, if possible.

The Spanish Government has just started a campaign for mass vaccination. The first vaccines have been offered to elderly people and personnel of Homes for Elderly people and other sanitation (cleaning) personnel. 

As the Government seems in favour of voluntary vaccination against COVID-19 and has not passed as yet any regulation imposing the obligation for employees to be vaccinated, many doubts arise for employers and employees.  We explore some of the key legal issues employers will be facing.  

Can employers insist an employee is vaccinated?

According to article 14 of the Law of Prevention of Labour Risks, employers are obliged to ensure the health, safety and welfare of employees at work. Therefore, employers are obliged to implement the necessary measures for avoiding risk at work. 

Nonetheless, as the Spanish Government has not passed any regulation to make the vaccine against COVID-19 compulsory and as the vaccination can affect the fundamental rights of life and physical integrity of individuals, we consider that employers can only currently make recommendations to employees to be vaccinated, but they cannot oblige or force them to be vaccinated. 

This criterion of voluntary and non-enforceable vaccination is reflected in article 8.3 of the Royal Decree 664/1997, which is only applicable to employees working in the bio-sanitary sector, doctors and nurses. This article relieves employers of the obligation to offer vaccines to employees and to inform them about the advantages and disadvantages of this vaccine, when employees are exposed to biological agents.  However, the decision to be vaccinated has to be taken unilaterally by the employee (the employer cannot oblige employees to be vaccinated).

What discrimination issues might arise?

As mentioned above, currently employers cannot oblige employees to be vaccinated against COVID-19, due to the fact that vaccination is not mandatory and bearing in mind that this decision affects fundamental rights of life and physical integrity of individuals. 
 
Therefore, there will be employees who decide not to be vaccinated, for example, because they have illnesses incompatible with the vaccine, they are pregnant (the vaccine has not been fully tested in pregnancy) and for religion or belief reasons. 

Employers will need to consider potential discrimination issues including those mentioned above when drawing up any policy on vaccination and before taking any action against an employee who breaches the policy. It is important to bear in mind that any discriminatory measure taken by the employer will be considered null and void and the Labour Inspection can put costly sanctions in place against the employer. 

As the consequences for committing discrimination acts in Spain are huge, we recommend studying carefully the measures employers will implement against employees who deny being vaccinated, before implementing the measure. 

What steps should employers be taking?

Since the beginning of the state of alert declared by the Government due to COVID-19, all companies are obliged to implement remote working for those employees who can work remotely and to implement in the premises of the company the necessary measures to avoid employees being infected (such as, social distancing, the obligation to wear masks, providing hydro-alcoholic hand sanitising gels, etc.).

Therefore, all companies should carry out a risk assessments to reduce the risk of employees being infected.  Companies should consult the health and safety representatives, they should implement preventive measures and a clear communication and formative programme addressed to employees relating to the risks of COVID-19 and the measures to undertake to avoid the risk of being infected. 

The risk assessment will need to take into account those employees who refuse to be vaccinated and alternative measures will need to be put in place to minimise the risk for the health and safety of the wider workforce. This is a nuanced area and our specialist COVID-19 safety team can support you here.

What if an employee refuses to be vaccinated?

We consider that, in general, employers will not be able to sanction or dismiss employees fairly if they refuse to be vaccinated. Where employers proceed to sanction or dismiss employees for this reason, we consider that these measures will be declared as unfair or null and void for infringing the fundamental rights of the employee and the Labour Inspection will be able to impose costly sanctions against the employer. 

Nonetheless, we understand that if employers consider that the lack of vaccination constitutes a risk for the general population, they will be able to ask the Courts to require employees to be vaccinated (employers cannot unilaterally require employees to be vaccinated), bearing in mind that: 

1. the Law 3/1986 of Special Measures for Public Health establishes that in case there exists reasonable evidence of danger for the health of the population, Public Authorities will be able to undertake certain measures to avoid these risks; 
2. one judgment (2393/2013) passed by the Superior Court of Justice of Andalucía on 22nd July 2013 obliged 35 scholars to be vaccinated against measles due to a disease outbreak. This Court considered that the collective health protection prevailed against the decision of some parents of not vaccinating the scholars. In fact, there is not much case law in Spain on this matter. 

Can employers refuse entry to the workplace if an employee has not been vaccinated?  

On general grounds, if an employer prevents an employee from entering the workplace, this constitutes an unfair dismissal of the employee. 

Bearing this in mind, we recommend studying carefully the situation before refusing entry to the workplace and in any case to try and resolve the issue by implementing certain measures, such as reaching an agreement with the employee relating to remote working, isolating the employee in the workplace from the rest of employees or applying to the Court for authorisation to prevent the employee from entering the workplace.  

What are the data protection implications?

Pending official indications from the Spanish Data Protection Agency in relation to this matter, in accordance with the provisions of health, labour and occupational risk prevention regulations, employers may process the personal data of employees necessary to guarantee their health and adopt the necessary measures to ensure the right to protection of the health of the rest of the staff and avoid possible infections in the company and/or work place. Such processing may include health data without the need for the explicit consent of the data subject, since the processing would be legitimate in order to fulfil the employer's legal obligations in the field of labour and security law and social protection.

In any case, the processing of such personal data must observe the principles established in the RGPD, in particular those of minimisation, limitation of the purpose and minimisation of retention.

In certain cases, the employer may need to know if the worker is vaccinated or not, in order to guarantee their health and adopt the necessary measures to ensure the right to protection of the health of the rest of the staff and avoid possible infections. However, there will be certain companies and/or workplaces in which, due to their particular circumstances, it will not be legitimate and proportional to process the employee's personal data to guarantee the health of the rest of the staff and avoid possible infections, since there is not an actual risk of danger to the health of other personnel.

Conclusion 

As this is a fast moving and complex issue for employers and the Government has not passed any law yet, it will be necessary to wait for government guidance which should help shed further light on the appropriate action to take.

Nonetheless, we recommend employers to continue promoting home working and to implement the legal measures established for avoiding the risks of infection due to COVID-19 (such as social distancing, oblige to wear masks, provide hydro alcoholic hand sanitising gels to employees, etc.)

In the United States, the Center for Disease Control and Prevention (CDC), a federal agency, has issued recommendations to federal, state and local governments about who should be vaccinated first.  However, each state has its own plan for deciding who will be vaccinated first and how a person can receive a vaccine.  Accordingly, states and local governments have adopted a wide variety of approaches and priorities for vaccinations.  Encouragingly, many analysts believe the President Biden administration is working to create more uniformity between the states and local governments, which in turn promises to help businesses determine if and when to require vaccinations. Nevertheless and presently, outside of the public and private healthcare industries, there is very little evidence of employers requiring employees to be vaccinated, though this may begin to change in the next three or four months as the supply of vaccines increases. However, even as vaccines become more available, ultimately the ability of public and private employers to require vaccinations will almost certainly be subject to numerous legal challenges (i.e., religious freedom, privacy, etc.) in the months, if not years, to come by union and special interest groups.  

Contact: This piece was written by Robert W. Hellner from our Exclusive Association firm Wood Smith Henning & Berman LLP

News of effective COVID-19 vaccines certainly provided the much needed light at the end of the tunnel. As the government embarks on the mass vaccination programme in 2021, we explore some of the key legal issues employers will be facing. 

Can employers insist an employee is vaccinated?

The UK government has not legislated to make the vaccine compulsory. The element of choice in deciding whether to have a vaccine presents employers with difficulties. Employers looking for effective COVID-19 control measures for their business will undoubtedly be keen for their workforce to be vaccinated as soon as possible, particularly in sectors where employees work in close proximity to vulnerable people.

Employers cannot physically force an employee to take the vaccine and, as the vaccine is not (currently) commercially available, employers cannot actually control access to or make an employee take the vaccine.  However, employers can strongly encourage employees to be vaccinated and, in certain sectors (such as health and social care) and close contact services, employers may be able to issue a reasonable instruction that they should do so, in order to protect the public, stakeholders and co-workers. However, taking disciplinary action or even dismissing an employee for failing to be vaccinated is not straightforward, as we discuss below.  

What discrimination issues might arise?

Unfortunately, a one size fits all approach will not be appropriate. The vaccine will not be suitable for all and some employees will have perfectly legitimate reasons for refusing vaccination.

Employers will need to take into account the different protected characteristics of their employees when considering their approach to vaccination. For example:

• Age discrimination – as the vaccine is currently being rolled out to older members of the population, any policy which disadvantages younger workers may be indirectly discriminatory.
• Disability discrimination – employees with certain disabilities may not be suitable for the vaccine (or for certain vaccines), for example those with immunosuppressant conditions.
• Pregnancy discrimination – the COVID-19 vaccines have not yet been fully tested in pregnancy, so the government advice to healthcare professionals is that, until more information is available, pregnant women should not routinely be offered these vaccines. One to one discussions with healthcare professionals are encouraged to discuss the benefits and risks of the vaccine.
• Religion or belief discrimination – employees may legitimately object to being vaccinated on grounds of their religious or philosophical beliefs (perhaps based on the content of the relevant vaccine or the testing process).

Employers will need to consider potential discrimination issues including those mentioned above when drawing up any policy on vaccination and before taking any action against an employee who breaches the policy. A key factor will be whether the action can be objectively justified as a proportionate means of achieving a legitimate aim under the Equality Act 2010. Protecting the health and safety of the workforce and stakeholders certainly seems like an obvious legitimate aim; however, is it proportionate when other measures could be put in place?  

Employers are also likely to be judged on the way they treat their employees during this time and showing empathy and flexibility around personal circumstances whilst encouraging compliance will assist in better engagement and resilience from the workforce.

What steps should employers be taking?

In addition to employers' common law duty of care towards their employees, the Health and Safety at Work Act 1974 requires every employer to ensure, so far as is reasonably practicable, the health, safety and welfare of employees at work. While it may be socially responsible to do more, the legal duty only applies in relation to hazards arising out of or in connection with a work activity and not those existing in everyday life – guidance is very clear that employers are not responsible for protecting against transmission of respiratory diseases prevalent in society for instance. 

Nevertheless, government guidance first issued in May 2020 requires employers to take steps to make their workplaces COVID-secure and the guidance may be updated to reflect the vaccination programme. 

Any workplace policy on vaccinations will involve:

• carrying out a risk assessment;
• discussion of the options and approach and approval at management level; 
• consultation with any workplace representatives, including health & safety representatives and considering the wider implications; 
• reviewing and updating contracts, policies and procedures; and
• a clear communication programme. 

Although it will be simple to amend contracts and policies for new recruits to require compulsory vaccination, inserting such a provision in current employees' contracts may not be straightforward. Such requirements may be met with widespread resistance and the discrimination issues highlighted above would present further difficulties.  

Employers should ensure their risk assessments are reviewed in light of the vaccine. The risk assessment will need to take account of any employees who refuse to be vaccinated and alternative measures will need to be put in place to minimise the risk to the health and safety of the wider workforce. This is a nuanced area and our specialist COVID-19 safety team can support you here.

What if an employee refuses to be vaccinated?

Vaccination on this scale is an entirely new and sensitive issue. We have yet to see how courts and tribunals will deal with unfair dismissal and discrimination cases in this context and are unlikely to do so for many months. Employers need to tread very carefully before disciplining or dismissing an employee for refusing to be vaccinated. A variety of factors will need to be taken into account, with each case being considered on its own facts, including:

• whether the vaccination requirement is a reasonable management request;
• health and safety requirements (including any risk assessments carried out);
• possible discrimination issues;
• the employee's reasons for refusal; and
• the implications for the employer of their refusal.

Employers in the health and social care sectors will probably be in a different position from employers whose workforce can easily work from home. Alternatives to vaccination will need to be factored in, for example: other social distancing measures, homeworking or different job roles in order to mitigate risk.  

Can employers refuse entry to the workplace if an employee has not been vaccinated?  

Employers have a duty of care to protect the health and safety of their workforce at work. Refusing entry to an employee who has not been vaccinated may in certain circumstances be a reasonable step in fulfilling that duty, though the circumstances are likely to be limited and if the risk were so great as to make vaccination mandatory then other significant control measures should already be in place. An employer should only use this as a last resort, once all the alternatives and the employee's reasons for not being vaccinated have been fully considered. The employer will need to weigh up the risks of the employee attending the workplace with the consequences of refusing to allow the employee access. Could the employee work from home?  Could social distancing measures minimise risk sufficiently?  Again, employers should carefully consider the individual circumstances in each case and the potential risk of any of the discrimination issues mentioned above.  

We are still in the early days of the vaccine, with much still to learn. We do not know if those who are vaccinated can still carry the virus. If they can, the argument to refuse access is diminished as anyone could be carrying the virus.  

What are the data protection implications? 

In order to fulfil their health and safety obligations, employers will legitimately want to know whether employees have been vaccinated and, in time, may actually help facilitate the vaccination process itself.  Employers will inevitably find themselves processing both personal and special category data. Employers will need to consider their data protection responsibilities and ensure that appropriate grounds for processing the data are clearly established and that data protection policy documentation is up-to-date and fit for purpose. In addition, the usual data protection principles of proportionality and transparency will need to be taken into account.  

Conclusion 

This is a fast moving and complex issue for employers. As the vaccination programme accelerates, we can expect government guidance which should help shed further light on the appropriate action to take and of course, while following guidance is often the socially responsible thing to do, it is usually not a legal requirement. 

As always, collaborating and communicating with your workforce will help facilitate this next stage in the journey. Employers which are able to unify the workforce by being as open and transparent as possible on the approach to vaccination will find themselves in the strongest position.  

Please also see our legal update: Can employers force their employees to take the COVID-19 vaccine?