Mandatory vaccination? Employers’ options for keeping the workplace COVID-19 free.

Eerder schreef Lorraine Mordaunt een blog over de mogelijkheid van werkgevers om werknemers te verplichten om zich te vaccineren. Samen met andere advocaten schreef zij het volgende artikel voor het blad Juriste International over deze mogelijkheid in hun jurisdictie.

 

Mandatory vaccination? Employers’ options for keeping the workplace COVID-19 free

 

Can employers require their employees to be vaccinated against COVID-19? We presented these and other burning questions to 12 experts in Europe as part of a roundtable discussion. The following is not an exhaustive list of the answers, but rather an overview of the common threads and key highlights of the discussion. Readers who have questions can of course contact the experts. Contact information is shared at the bottom of the article.

 

Can employers in Europe require their employees to be vaccinated against COVID-19?

Generally within the European Union, there is no obligation for employees to be vaccinated against COVID-19. Put simply, there is no legal basis to make the vaccine compulsory.

 

In Germany, for instance, discussion arose on whether such obligation could be stipulated in the employment contract or in collective agreements, or whether it could even be considered as part of the employer’s right of instruction. Due to the considerable intrusion of a vaccination into the employee’s right to privacy and physical integrity, however, such view is largely rejected.

Mr. Thomas Kälin  from Switzerland comparably argues that the employer’s operational interests must outweigh the employee’s personal rights. It can hardly be argued that this is the case outside special environments of increased vulnerability or risk of infection, such as, e.g., hospitals or retirement homes.

 

At the same time, the absence of the option for employers to require their employees to be vaccinated is in stark contrast to the obligation of employers to ensure safety in the workplace. In Spain, for example, employers have the obligation to take preventive measures to combat the spread of COVID-19 in the workplace, based on workplace health and safety laws, says Mr. Álvaro Fernández Sánchez del Corral.

 

In that context, a legal basis does exist in several European countries to allow employers to impose vaccinations on their employees in specific professional sectors. In France, for example, such legal basis exists for 11 diseases (such as Hepatite B, or measles) for employees working in health care institutions or nursing homes. For vaccines against any other disease, the employer can only “make recommendations, with the contribution of the occupational doctor” for employees who may be exposed to biological risks, argues Mrs. Caroline Barbe.

 

The same is the case, for example, in the Czech Republic for some specific diseases in particular workplaces or employees working with special biological agents. Virus SARS-CoV-2 consists one of these biological agents under Czech law and we assume that in some workplaces (e.g. labs working with the samples of the virus), employers could demand the vaccination in the context of their risk prevention policy, says Mr. Tkadlec Matěj.

 

Also in Belgium, the coronavirus SARS-CoV-2 has been listed as a group 3 biological agent. Employers in the industries concerned are obliged to take this into account in their risk assessment and must offer the employees concerned the opportunity to be vaccinated if an effective vaccine is available and they are not immune yet. However, there is no obligation for the employees to get vaccinated against COVID-19 in these industries either.

 

Mrs. Emelie Svensäter Jerntorp informs us that in Sweden, an interesting distinction is made between private and public sector employees. The statutory right to bodily integrity in relation to the state prevents employees within the public sector to be obliged to get the COVID-19 vaccine. This constitutional right does not apply to private sector employees. However, the principles as discussed above can also be extended and employers cannot oblige their employees to be vaccinated.

 

Can an employer request a copy of a vaccination certificate or restrict access to the workplace?

Not only can employers not force their employees to take a corona vaccination in Europe, they can generally not force their employees to present proof of vaccination either.

 

Given privacy laws and GDPR, employers cannot always simply request or keep records of their employees’ vaccinations. Moreover, when imposing sanctions (e.g. dismissal) due to the (alleged) vaccination status of employees, employers must take into account discrimination laws to avoid claims.

 

Mrs. Nicole Deparade from Germany underlines that health protection at work should be ensured primarily by other protective measures such as keeping social distance, protective masks, ventilation and hygiene concepts. As a result, unvaccinated employees may not simply be treated unfavorably or denied access to the workplace.

 

This is in line with the view in the Netherlands, France and Belgium. The Dutch Working Conditions Act imposes a general duty of care for a safe working environment on the employer. This includes preventing positively tested employees from entering the workplace and infecting colleagues and others. However, it does not allow denying complaint-free employees access for not being vaccinated nor requiring an employee to get vaccinated, says Mrs. Lorraine Mordaunt.

 

Mr. Lukas Wieser argues that in Austria, on the other hand, questions about vaccination status concern the employee’s personal rights. Employees are only required to answer such questions truthfully if the employer has an overriding interest in the individual case. Containment of the pandemic and the employer’s duty to take protective measures for all employees may be argued as such an overriding interest, in which case, employees would be required to truthfully provide their vaccination status.

 

In Slovakia, employers have certain legal grounds to prevent employees to enter the workplace due to the pandemic, but a missing vaccination certificate is not a sufficient ground for entrance denial. Under the current laws, the employer is allowed to inspect the vaccination certificate (if issued). GDPR rules however, prevent the employer from making a copy of the certificate, states Mr. Thomas Rybar.

 

In Switzerland however, Mr. Thomas Kälin argues that, if required to organize its workforce and operations, the employer could be allowed to ask if the employee is vaccinated and could deny access to company premises on this basis. Processing such data must, again, remain compliant with data protection laws.

 

Can an employer sanction unvaccinated employees?

Bearing in mind that there is no legal basis for a mandatory COVID-19 vaccination in the workplace in most European jurisdictions, employers should be careful when imposing sanctions (e.g. dismissal) on employees who refuse to get vaccinated.

Mrs. Moira Campbell from the UK underlines that disciplinary sanctions or dismissing an employee or forcing them to take unpaid leave of reducing their salary because they have not been vaccinated is likely to result in potential claims. A blanket policy requiring employees to be vaccinated may be deemed discriminatory, for example on the grounds of disability, age, pregnancy, or religious/philosophical belief.

 

In Portugal, it is similarly argued by Mr. Manuel Ferreira Mendes that since there is no legal obligation to get vaccinated, a refusal to do so can hardly result in dismissal or other sanctions.

 

According to Mrs. Nicole Deparade from Germany unvaccinated employees can only be sanctioned (even up to termination of employment if a transfer to a position without vaccination requirement is not possible) in case a statutory obligation for vaccination against COVID-19 would be introduced in the future. This could, for instance, be possible for certain professions or occupational groups or based on a company’s specific risk assessment.

 

The choice to be vaccinated mostly remains with the employee. Refusing vaccinations could have consequences (such as relocation, switch of position or even a dismissal), but this always has to be assessed on a case by case basis and after an individual risk assessment.

Mr. Matteo Cocuzza from Italy argues that it is advisable to sign a trade union agreement or to collaborate closely with the competent company doctor and employees’ representatives when carrying out such a risk assessment.

 

What other incentives are being considered in different European countries?

The fact that employers cannot require their employees to be vaccinated against COVID-19 does not mean that they cannot consider alternatives to encourage their employees to get vaccinated.

 

From the debate results that employers all over Europe are considering their options, including providing (voluntary) access to and information about the vaccine, allowing paid time off for getting the vaccine, paying for the vaccine, organizing vaccinations on an operational level, etc.

 

In France, for instance, the occupational medicine services are expected to organize vaccination campaigns in the coming weeks. Those campaigns will be deployed in consultation with the employers.

 

In Belgium, a draft law on granting workers the right to paid leave in order to be vaccinated (so called “vaccination leave”) was approved. Moreover, employers are allowed to encourage their employees to be vaccinated through a free vaccination campaign at the workplace (under the direction of the occupational medicine services). The benefit of the free vaccination is exempt from taxes and social security.

Also Mr. Lukas Wieser from Austria endorsed the idea of granting employees paid time off for the vaccination.

 

Another possibility one could think of is asking unvaccinated employees to work from home while vaccinated employees can work in the office buildings, as proposed by Mrs. Emelie Svensäter Jerntorp from Sweden.

 

Mr. Matteo Cocuzza from Italy proposes that employers could work with economic incentives to stimulate employees to get vaccinated. In Belgium, for example, the option of awarding a vaccination bonus is being discussed. Some argue that a collective salary bonus (i.e. when a collective target is reached, e.g. 90% of employees is vaccinated) would be legally possible as a means of encouraging vaccination. However, the authorities have recently taken the position that they do not agree.

 

In the UK, the debate about vaccine passports and its impact on employers and employees is currently raging. This is in line with the discussion on the travel vaccination passport proposed by the European Commission.

 

Conclusion

In Europe, there is no specific legal basis allowing employers to require their employees to be vaccinated against COVID-19 so far. Employers, however, undeniably have other options to encourage their employees. An often recurring proposal is the one to allow employees to have the vaccine during working hours.

The vaccination debate clearly gives rise to a considerable number of employment law questions. Depending on the vaccination strategy that the various countries are currently rolling out and the further evolution of the coronavirus, these questions will continue to be part of the social law landscape for a considerable time to come.

 

Het volledige artikel is terug te vinden via: https://www.uianet.org/sites/default/files/ji-2021-1-bat.pdf.

 

Wilt u meer informatie, neem dan contact op met Alf Bungener (bungener@pactadvocaten.nl, tel. 06 – 104 105 59), Lorraine Mordaunt (mordaunt@pactadvocaten.nl, tel. 06 – 362 665 22) of Martijn Burgers (burgers@pactadvocaten.nl, tel. 06 – 11 388 527).