WorkLife 2.0: workplace COVID testing and vaccination protocols in Europe

To protect employees, contractors and visitors, many employers – particularly in the US – have adopted testing and vaccination protocols.

As part of our blog series ‘WorkLife 2.0: what to expect in 2021’, this posts considers the issue of COVID testing and vaccination in workplaces in Europe.

Can employers make vaccinations mandatory?

With the rules varying across European jurisdictions, whether or not an employer can insist on existing employees and/or job applicants being vaccinated before attending the workplace is not clear. But, as of today, the answer to the question leans towards a ‘no’.

An employer’s duty to ensure the health and safety of its workforce competes with an individual’s right to determine if and when they accept medical treatment (which includes being vaccinated). Unless there is a (valid and enforceable) statutory provision mandating vaccinations for certain or all groups of the population, employers in Europe will generally not be able to impose this obligation on its employees – and certainly not for the entire workforce.

In Spain for example, there is no national legislation that makes being vaccinated mandatory so employers are not in the position to make it mandatory either. Meanwhile, at the regional level, Galicia has made being vaccinated mandatory but that does not mean employers can impose their own rules. The same applies for the time being in other jurisdictions, such as France, Italy, Russia and the Netherlands.

In Germany, it seems unlikely that there will be any legislation any time soon making being vaccinated mandatory. If any such legislation does materialise, it would likely only mandate that individuals working in a certain exposed sectors (eg healthcare workers) may not perform their roles if their immunity against the virus remains uncertain, ie the legislation would merely set out the consequences if the relevant individuals decide not to get vaccinated.

There are a few exceptions, such as the UK, where government officials have suggested that compulsory vaccination is a matter for business to decide. But even there, a blanket approach won’t work.

In Germany, absent any COVID-19-specific legislation, competing interests will need to be balanced on a case-by-case basis. Relevant factors will be, for example:

• whether the employer could implement alternative measures to protect its workforce that are less intrusive but sufficiently effective (eg social distancing or home working);
• how many employees are particularly vulnerable to the virus by reference to their age, disability or pre-existing health conditions (if known); and
• whether the employer can reassign unvaccinated employees to other roles that reduces the risk to their co-workers.

But for health- and social-care environments such as hospitals and serviced retirement homes – where patients and residents, who are particularly vulnerable, would be exposed to a greater risk if dealing directly with unvaccinated individuals – we would assume the employer can mandate vaccinations for certain roles.

To that end, it seems advisable to refer to government guidelines outlining which groups of the population will be prioritised in terms of vaccine distribution – if the employer is looking to protect the same prioritised group of individuals and there are no alternative and equally effective ways to achieve this, the employer’s interests should prevail.

Other factors may influence whether vaccination should be made mandatory for certain roles: some countries may require travellers to be vaccinated as a condition of entry. Even airlines or hotels may place restrictions on unvaccinated individuals. Also measures taken by a company’s customers may require visitors to show proof of vaccination.

What should the employer/provider do in such cases? Only deploy vaccinated employees? Is that even possible? While in some jurisdictions, such as Germany, the employer might have to use reasonable efforts to change the third party’s position in these circumstances before taking any measures against the employees, it remains unclear which threshold judges will apply to the ‘reasonable-efforts’ standard during a global pandemic.

What about job applicants? 

Could an employer make vaccination a condition of employment for a prospective employee?

Discrimination laws apply to job applicants as well as existing employees so generally speaking this will not be possible, except if absolutely necessary in all the circumstances (eg the recruitment of an international executive whose role will include frequent travelling, including to countries with non-existent or slow-moving vaccination programmes).

Can an employer require proof of vaccination?

An employer looking to make vaccinations compulsory would want employees to prove they have been vaccinated. But unless there is an express statutory provision governing these vaccinations, data protection regulations will prevent employers from demanding such proof.

Vaccine passports are a hot topic at both a national and regional level in Europe, which, if the data-privacy concerns can be resolved, could allow employers to seek proof of vaccination from their employees.

The head of the UK’s data protection authority has looked at this critically, stating that vaccine passports could, in addition to data-privacy risks, create a two-tier society, based on who has (and hasn’t) been vaccinated. UK Prime Minister Boris Johnson has also recently stated that there will be a review into the use of vaccine passports for domestic activities, after previously expressing that there were no plans to introduce such a regime (although he did describe it as ‘inevitable’ in relation to international travel).

Other jurisdictions however, such as Denmark, have already approved the roll-out of vaccine passports. Greece or Spain have also stated they would favour some sort of tool with information on vaccination or test results that would allow the arrival of foreign travellers, particularly holidaymakers. However, the question remains whether this tool could be used for other purposes, eg access to a workplace. Even the EU looks to have changed its mind on the matter.

Can an employer promote vaccination and (financially) incentivise employees to get vaccinated?

Promoting vaccination is generally fine. Some countries are requiring employers to inform employees of their options, particularly as vaccinations become available to working-age people. France for example requires employers to fully inform employees aged 50 or above of their options to access the vaccine, but vaccination itself is happening outside of the workplace and all individual data has to be kept confidential.

Financially incentivising employees to get vaccinated is risky. One-off COVID bonuses rewarding individuals for getting vaccinated could, in certain jurisdictions, be in breach of equal-treatment principles or be regarded as victimisation.

Some employers are going one step further and openly confronting doubts about being vaccinated and establishing channels allowing employees to voice their concerns around vaccination. This too brings legal risks, as employees who choose not to be vaccinated (even for legitimate reasons) may feel bullied or harassed by such an approach. While providing objective information about vaccinations to employees will help to keep the workplace safe, employers should ensure this is done in a sensitive and respectful way.

In Germany, many employers are interested in establishing their own workplace vaccination centres  to make it easy for employees to get vaccinated. Getting company doctors trained to provide the vaccine can help get more persons vaccinated in a short period. Other employers are considering offering employees paid leave to get vaccinated at a vaccine centre (although, by law, employees will likely be entitled to paid leave for vaccination anyway if they can only get an appointment during working hours).

Can an employer take disciplinary action against an employee for refusing to be vaccinated? 

Employers will find it challenging to take disciplinary action against an employee who refuses to be vaccinated, even if the employee is in an exposed role/part of a group for which vaccination is required by the authorities.

The employer will generally need to first look at alternative measures, such as temporary reassignment to another role or prolonged home working. If there is no alternative, the employer may want to consider disciplinary action (a warning or even termination of employment) but will need to look carefully at the reasons the employee gives for refusing to be vaccinated. There are a number of grounds that may be legitimate here, depending on the country (eg an underlying medical condition, age or religion/belief), thereby possibly rendering the employer’s decision discriminatory.

Could compulsory testing supplement or replace mandatory vaccination?

Some employers are wondering if they should require employees to be regularly tested, as well as test contractors and visitors before they enter the workplace.

As with compulsory vaccination, local regulations show a very fragmented picture. The answer will generally be the same as for vaccination: a COVID-19 test being a medical act, it cannot be imposed by an employer on its employees, except in some well-defined circumstances or when testing is required by the authorities themselves.

Having said that, the situation in relation to testing is evolving quickly, with countries flexing their rules. In Germany for example, in order to avert a legal obligation for employers to provide weekly test for employees present at the workplace (which was considered by the chancellor and the prime ministers of the states), the four largest business associations issued a joint statement calling on companies to offer their employees self-tests, and where possible, rapid tests to detect infections early. The business associations announced that they will start an information campaign and inform the public about the number of companies participating. A first evaluation of the companies’ efforts shall take place at the beginning of April after which the legislator will decide whether a statutory obligation is necessary after all. The German state of Saxony already adopted a regulation according to which as of 22 March 2021, employers will be required to offer their employees who are present at the workplace the opportunity to take a free self-test at least once a week. Furthermore, as of 15 March 2021, employees with close customer contact are obliged to get tested on a weekly basis with the employers being obliged to provide the tests free of charge.

Also, it will generally be easier for employers to refuse access to a site to employees who refuse to take a test, although the above comments on disciplinary action will apply as well.

Other requirements 

Employers wanting to establish any vaccination and/or testing protocol will need to comply with data-privacy rules, including the EU General Data Protection Regulation.

Information and consultation rules may apply as well, with some jurisdictions requiring that works councils are consulted on the content of the envisaged rules.

Other preventive measures 

Countries are generally looking at testing and vaccination as ways of supplementing (rather than replacing) existing measures, such as home working where possible, social distancing, installing screens around workstations and wearing PPE.

In relation to wearing PPE, a Spanish court recently upheld an employee’s summary dismissal for refusing to wear her mask appropriately. Despite a customer complaint, the employee, who worked at the fish section of a supermarket, refused to wear her mask such that it would cover her mouth, nose and chin. The court held that, for health and safety reasons, the employer was able to impose an obligation on its employees to wear masks and that the individual’s subsequent behaviour towards the customer and her supervisor justified a summary dismissal.

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As the situation is constantly evolving, including in relation to vaccination and testing, employers need to monitor regulatory and other developments very closely. Please reach out to our team if you have any questions.