Following on from our March blog post on workplace testing and vaccination protocols in Europe, below you will find a number of local and regional updates. Even in regions where vaccination is making good progress, employers will still need to adjust protocols at a local level as rules and approaches continue to differ on a country-by-country basis.
Regional developments and their implications
Council of Europe
As we emphasised in our previous blog post, an employer’s duty to ensure the health and safety of its workforce often competes with an individual’s right to determine if and when to accept medical treatment (which includes being vaccinated). Therefore, employers cannot – save for where there is a clear local statutory provision mandating vaccinations for some or all of the population – impose vaccination (and, in most cases, testing) on their employees.
At a European level, there has not yet been any guidance or legislation to make vaccination mandatory. On the contrary, the trend seems to be to resist imposing vaccination on both citizens and, more narrowly, employees.
According to the Council of Europe (CoE), which has a broader membership than the EU and of which the UK is still a member, a blanket approach to mandatory vaccination seems to be out of the question. This was recently confirmed by the Secretary General of the CoE in accordance with the views expressed by the CoE Parliamentary Assembly in a January 2021 resolution. Member states were asked in this resolution to ensure their citizens are informed that vaccination is not mandatory and that no one will be discriminated against if they are not vaccinated (due to either possible health risks or them simply not wanting a jab).
The Secretary General emphasised the need for a strict test of lawfulness and proportionality for any mandatory measures related to health (such as vaccination) in order to comply with the European Convention on Human Rights (ECHR). While neither the opinion of the Secretary General nor the resolution is binding on member states, these statements are nevertheless significant.
It is worth mentioning also that the recent C-47621/13 decision of the European Court of Human Rights (which was created by the CoE) found that a mandatory vaccination policy imposed by the Czech Republic on children did not infringe the right to privacy under article 8 of the ECHR. Even though this ruling might seem to contradict the above-mentioned statements by the CoE, it should be noted that this is a very fact-specific case which differs from the unknown COVID-19 landscape. The case indeed scrutinised child vaccination made mandatory by local statutory provisions, involving well-known vaccines against well-known diseases. In any case, the ruling will be of no help to employers who intend to impose vaccination on their employers outside of any local statutory provisions.
While there is no legislation or proposal for the vaccination of employees at EU level, the latest initiative of the European Commission ('the Commission'), the so-called 'Green Pass', if adopted, can be expected to incentivise vaccination and indirectly support employers who are keen for employees to get vaccinated as soon as possible.
The draft regulation (PDF) on a European Digital Green Certificate ('the Green Pass') was published by the Commission in mid-March. The Green Pass is designed as a system of certificates (relating to vaccination, negative testing or COVID-19 recovery) to offer a co-ordinated approach across member states for lifting restrictions related to free movement and the exercise of other fundamental rights, while ensuring control of the spread of the COVID-19 virus. The European Parliament agreed to fast track the proposal, meaning it is potentially heading for a formal adoption by the European Council and Parliament in the next few weeks. EU’s Justice Commissioner Reynders has stated that the pilot schemes will be launched at the beginning of June, with provisional date for an operational system on 21 June, which will leave little time for member states to prepare.
However, data protection may stand in the way of such a quick adoption, as the European Data Protection Board (EDPB) and the European Data Protection Supervisor (EDPS) issued a joint opinion (PDF) in early April asking for the Green Pass to follow a comprehensive legal framework in line with existing data protection legislation. The intention behind such opinion appears to be for the system to avoid any form of discrimination (for instance, by allowing the certificate to be in digital and paper format to ensure inclusion of all citizens) and for the proposed regulation to ensure full compliance with the principles of necessity, proportionality and effectiveness.
The European Parliament adopted its negotiating position on 29 April. Where there is broad support to the Commission's initiative, the Parliament's position differs from the Council's own negotiating position, which may potentially slow the adoption process or at least makes the discussions more difficult between the institutions. The Parliament share the above data protection concerns and wants strict safeguards (no central database, data not kept by the destination country, etc). It further asks member states to offer free testing (vaccination is currently free in many countries but not testing) and the removal of any other entry restrictions (such as quarantine) for certificate holders. The Parliament added that the certificate should be in place for 12 months at the maximum and 'neither serve as travel document nor become a precondition to exercise the right to free movement'.
National reactions to the EU Green Pass initiative differ, as is often the case across EU member states. Denmark is already trialing a certificate scheme in order to allow non-essential travel, and France have begun testing a certificate for travel in and out of Corsica. Perhaps unsurprisingly, many countries that are heavily dependent on tourism (such as Greece) are supporting the initiative.
Outside the EU, the legal position in the UK remains unclear, although at present it seems likely as a minimum that businesses will be allowed to demand proof of COVID-19 status (and negative test results remain a requirement for international travel). In the US, the Biden administration is not in favour of a creating a federal vaccination certificate due to the requirement to collect data. However, they have acknowledged the need for citizens to provide proof of vaccination on several occasions, and have left it to the private sector to deal with the potential for a pass or certificate for this purpose.
Should the EU Green Pass materialise in time for the summer holidays – and even if it is a triple-entry certificate (vaccination/negative testing/recovery) – it is likely to incentivise more people to get vaccinated as soon as possible (leaving the issue of access to vaccines aside). 'No jab, no holiday' may become a popular catchphrase this summer, whether one likes it or not. This would indirectly benefit employers who are planning for a return to the workplace in September and are presently developing the related return-to-office policies.
The approach to testing and vaccination in the workplace and whether it can be mandated remains fragmented in Europe, but the situation is evolving fast and some national governments have started to consider imposing vaccination for certain categories of employees.
For instance, on 1 April the Italian government provisionally enforced a decree that mandates the vaccination of healthcare workers and dentists. If employees do not wish to get vaccinated, they can either be transferred to another function where there is no risk of spreading COVID-19 or be suspended without pay for up to one year.
The UK is also considering similar measures for certain categories of staff, such as those working in care homes. According to a consultation that was launched by the UK Department of Health and Social Care on 14 April, the intention is to amend regulations to require older adult care home providers to deploy only those workers who have been vaccinated. This is intended to combat the low vaccination levels among care-home workers in the UK, which are not where they should be in order to minimise the COVID-19 risk. Further consideration is also being given to taking the same measures for other professionals who visit care homes, such as NHS workers.
On the other hand, some regions appear to be going in the opposite direction. For instance, Spain’s national government challenged the constitutional court in relation to the decision in the region of Galicia to make vaccination mandatory.
Even though imposing mandatory vaccination seems unlikely in Germany, stringent measures are taken for employers where testing is concerned. After adopting a new Occupational Safety and Health Ordinance only a week ago, which makes it obligatory for employers to offer free testing at least once a week for all employees who do not exclusively work from home and twice per week for certain groups of employees (such as those housed in community accommodation by the employer, those working indoors under close conditions and those who have close contact with others), it was announced on 20 April that the Ordinance will be amended and free tests twice per week have to be offered to all employees. In addition, the Federal Infection Protection Act has been amended and now states that, in the case of office work or comparable activities, employers must offer employees the opportunity to work from home if there are no compelling operational reasons to the contrary. Employees must equally accept this offer if there are no reasons to the contrary.
However, the federal ordinance in Germany does not impose employee testing, even if employees are at increased risk of infection due to their activities. The scheme thus differs significantly from state regulations in Berlin and Saxony, which provide for an obligation to test employees doing certain activities ('direct customer contact').
What is gradually becoming clear from the approach across Europe is that the appetite for mandatory vaccination against COVID-19 at a regulatory level is low, with states preferring to implement schemes such as the Green Pass to encourage citizens to take up the vaccine instead. For employers, it remains unclear whether mandatory vaccination will be acceptable outside the healthcare sector, with the current focus remaining on ensuring regular and accurate testing being available to employees and working from home wherever possible.
'No jab, no holiday' may become a popular catchphrase this summer, whether one likes it or not.