10 February 2021
Around the world, employers are continuing to grapple with the ever-changing demands of the pandemic. As the devastating impact continues, hopes have been raised that vaccines will constrain the pandemic’s impact and help to start achieve some much-needed certainty and normality.
For multinational employers, the issue of vaccinations has the added complexity of different rates of progress of the roll-out of the vaccines across jurisdictions, different government policies on strategy and priority groups and different laws and practices. As such, a globally-consistent approach to incorporating vaccination within workplace plans may be currently unrealistic. The management of a global workforce will however require an understanding of the different, often competing, workplace considerations that the prospect of vaccines brings.
Government-led vaccination approach
Globally, a number of vaccines have now been granted general approval. While China has been rolling-out a vaccine to certain groups for a number of months, other countries have been slower off the mark. However, a growing number of jurisdictions are now demonstrating the ability to quickly implement and undertake mass vaccination programmes across large proportions of populations.
Recognising the potential for inequitable global distribution and that vaccination of the majority of populations is required on a global scale to have any real prospect of halting the charge of the pandemic on any long-term basis, the World Health Organization continues in its efforts to ensure fair access to COVID-19 vaccines worldwide.
Over the next few months, much will depend on vaccine supply and distribution, including the availability of finishing and packaging products and appropriate storage facilities. Further, the outcome of government strategy on vulnerable groups and prioritising first doses, the proven effectiveness of vaccines, the ability to cope of health services, and even environmental factors. The existence and progress of variant strains will add yet another denominator to such outcomes. Companies will also continue to closely watch the possible commercial availability of vaccines across jurisdictions.
The thorny issue of mandatory vaccination – emerging global practices
The issue of mandatory vaccination has become a hot topic across the globe. Despite the long-term effectiveness of a vaccine being dependant on achieving a high proportion take-up, in many jurisdictions, particularly in Europe, governments have been quick to make clear that a mandatory vaccination approach will not be adopted.
In some jurisdictions, such as Spain and the US, legal mechanisms already exist that could be used to impose vaccination if necessary, however there has not yet been any move to utilise such powers. In other countries, the issue may be determined by the courts. For example in Brazil, where the Supreme Court recently granted permission for local governments to introduce measures for compulsory vaccination. While individuals cannot be ordered to receive the COVID-19 vaccine by force, governments at federal, state, and municipal levels in Brazil can impose legal measures restricting individual rights if an individual fails to demonstrate that they have been vaccinated. That may include, for example, a restriction on welfare benefits or a ban on entering certain premises.
Given the invasive nature of vaccines and the impact on fundamental rights of compulsory vaccination, it presently seems an unlikely move for European governments to change the current stance. In any event, any such move may ultimately be unnecessary as vaccination becomes more commonplace, more in-country-created vaccines are approved and acceptance becomes more widespread. Further, with increased understanding that in a vaccinated population there is a higher chance that individuals will be able to enjoy the advantages of a society without significant restrictions.
As such, the more likely approach currently seems to be campaigns to address misinformation and encourage voluntary participation. For example in India, where taking the vaccine is not mandatory, but registration for the vaccine is. In requiring registration, the Indian government hopes that individuals will be encouraged to be vaccinated, particularly when coupled with the use of the country’s dedicated Co-Win app, through which direct contact is made with registered individuals.
Risks of an employer-required vaccination approach
In the absence of a government-mandated vaccination program, and aside from a few exceptions, it is highly unlikely that local laws, particularly in Europe, will permit employers to require workers to be vaccinated. Outside of Europe, some legal systems may buck this trend, including in the US where mandating vaccines to workforces, particularly for those that cannot work from home, is more likely to be deemed an acceptable approach, subject to less risk.
Caution should therefore be exercised around making immunization a global requirement of employment or continued employment. Except for certain occupations that require particular vaccinations, such approach could result in liability in some jurisdictions, not only because there are reasons why workers might legitimately be unable to have a vaccine or refuse it. Employers could potentially risk litigation if they force the issue with workers, together with negative publicity. Currently, there also remains the practical issue of commercial access to the vaccine across the globe, with many countries adopting a strict policy of vaccination for certain ‘high-risk’ groups, without any access for commercial businesses to obtain vaccine doses.
In countries with developed collective consultation mechanisms, there may be legal information and consultation requirements with unions, health and safety representatives, employee representatives, or works councils in relation to vaccine-related policies/campaigns that could result in additional risk if not properly addressed, especially where vaccine-related measures could impact pay or continued employment. In some jurisdictions, the obligation will go beyond information and consultation, and the buy-in of the collective body will need to be achieved. For example, in Germany where any existing works council may have a right of co-determination.
In many jurisdictions, there is also a significant practical barrier to employers knowing if or when their staff have been immunized: local data privacy laws often prevent employers from gathering this information without a suitable lawful basis. Such difficulty also applies to verifying the accuracy of data supplied by workers. Without such data, even if employers might be able to gauge likely timescale of vaccination according to government vaccination bandings, they cannot be sure whether employees have participated.
Given the tension between the commercial and health and safety benefits of a vaccinated workforce and the practical and legal issues of achieving this, it is expected that governments and regulation authorities are likely to intervene and offer guidance for employers as the vaccine becomes more readily available.
Mandatory vaccination through indirect measures?
If making immunization a condition of employment is likely to be a step too far in many jurisdictions without government-mandated vaccinations, what about other measures, such as preventing employees from attending work if they have not had the vaccine, withholding pay if they contract COVID-19 and are then off sick, or offering cash incentives only to those that can demonstrate they have been vaccinated? After all, employers have a legal obligation to protect the health and safety of their entire workforce.
Even if the data privacy issues can be surmounted, in many jurisdictions there will often be at least some obligation on an employer to objectively justify why the measure, detriment or disparate treatment is reasonable and necessary, taking account of factors such as the nature of each employee’s role and the viability and availability of other alternative measures to protect the health and safety of the workforce. Further, an obligation to be flexible in the approach adopted to take account of the fact that for some employees, vaccination may not be an option, such as for those that are pregnant or have particular religious beliefs.
Different countries will allow different responses, which will depend on the way in which the employment law regime operates. For example, in the US where the employment at will approach means that there is often wider scope for employers to demand particular action from workers and move to termination in the absence of acceptance, albeit taking account of reasonable accommodations in certain circumstances for some categories of workers, such as those with a disability that prevents them from taking the vaccine.
Preparing and rolling-out vaccination policies
At this stage, particularly in Europe, rolling out any mandatory global vaccination policy is likely to be premature and, without government regulation or guidance, could lead to employee relations issues and potential litigation. Instead, a policy of voluntary vaccination, alongside other health and safety measures, is likely to be the most appropriate avenue. As a minimum, such voluntary policy is likely to include the purpose of the adopted approach, to whom the policy applies, and any steps the employer will take to help or encourage workers to be vaccinated, always bearing in mind local laws, including discrimination laws, as well as data privacy considerations.
Whether the policy is mandatory or voluntary and particularly given the emotive subject of vaccinations, having a senior, cross-jurisdictional team that is able to devote the necessary time and management commitment to devising and rolling-out a policy, co-ordinate processes in different jurisdictions and monitor and share relevant information in this fast-changing area, will be critical. Further, where collective obligations apply, early steps are likely to be required to start communications and, in some jurisdictions, a detailed process built into the timeline before the policy is ready for roll-out.
Ensuring that the approach adopted can be shown to be carefully reasoned, taking account of the range of interests that are present in the workplace and the viability of alternatives, will be key to preparing and delivering communications with the workforce and any collective bodies.
Especially where there is collective body involvement and any vaccination policy impacts ongoing employment or pay, employers should expect to be challenged on reasonable alternatives to vaccination. For example, regular testing, especially when combined with other health and safety measures, such as social distancing and the use of personal protective equipment, will often present a more flexible option to protecting health and safety than insistence upon vaccination. That is markedly so given that, in many jurisdictions, testing is now more accepted as a proportionate measure, albeit with data privacy considerations to bear in mind.
Conclusion
Vaccines are undoubtedly a game-changer in the ongoing battle against COVID-19 and the incremental release from the restrictions and controls that have variously been in place across the globe over the last year. While a mandated approach is a tempting avenue to pursue to help business continuity and ease the number of a
lternative safety measures, the legal and practical barriers should be understood. Although some jurisdictions, such as the US, may allow a more robust approach, encouraging rather than requiring vaccination is likely to be the safest option in many countries at this time.
Jennifer Van Dale, Partner, Eversheds Sutherland
jennifervandale@eversheds-sutherland.com
