WorkLife 2.0: workplace Covid-19 testing and vaccination protocols – yet another update

Return to office policies were a hot topic this summer as employers were busy preparing for the September re-opening of workspaces. The question of the accompanying health and safety measures remains a tricky one to deal with for global organisations. This post focuses on testing and vaccination protocols.

A lot happened since we last wrote on this topic in our April post: the EU Green Pass (also called the Covid-19 passport) entered into force on time for the summer holiday period; France made vaccination compulsory for healthcare workers and other categories of workers, the US president called for vaccination to become mandatory in the private sector and Italy is planning on making the Green Pass compulsory to access any workplace.

People across Europe and beyond are certainly more relaxed than before the summer when it comes to taking tests, vaccines and sharing the related status: most of us did it just to be able to go on holiday (or in some countries, access a restaurant). But does this mean that global employers can apply a blanket approach worldwide, mandating testing and/or vaccination and asking for status updates? The answer is no. There remain huge variations across regions and countries.

As we emphasised in our previous blog posts, an employer’s duty to ensure the health and safety of its workforce often competes with other rules deriving from employment, anti-discrimination and privacy laws and in particular 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.

Europe 

At a European level, save for the EU Green Pass, there is still no guidance or legislation to make vaccination mandatory. Vaccination of individuals is thus still voluntary under EU law, but as noted above, the Green Pass has indirectly helped with the vaccination of employees.

At a national level, employers will need to navigate through the various approaches and regulations. After Italy (see our previous post), France and Greece are the next EU countries to impose employee vaccination (or testing or proof of recovery from Covid-19 in Greece, see below).

In France, since September, several categories of employees (including medical and paramedical professionals working in hospitals, clinics and retirement homes, firefighters, ambulance drivers and more) are subject to mandatory vaccination. The above categories of employees can only be exempted from such requirement based on a proven medical condition.

Mandatory vaccination cannot be imposed on other categories of employees and employers are not allowed to ask about the status of vaccination. However, should the employees wish to get vaccinated, the employers must facilitate this (e.g. by allowing employees to take time off to get vaccinated during working hours).

Besides, employees working in places in close contact with public (such as restaurants, movie theatres, high speed trains and more) are subject to the obligation to present a sanitary pass, which is granted notably after vaccination or a negative Covid-19 test.

Employers have the responsibility to make sure that their employees comply with  the obligation to be vaccinated against Covid-19 or to present a sanitary pass when required. Refusal to do so may lead to suspension of the employment contract and remuneration. However, dismissal for failure to comply with these requirements is not possible at present, which may in the long term create organisational difficulties for companies that would need to permanently replace uncooperative employees.

Russia has implemented a similar approach. This summer saw the majority of Russian local sanitary authorities issuing regulations that oblige employers of specific sectors (related to close/extensive contact with other people) to arrange vaccination of a given percentage of their employees within a limited time frame and to report on the progress. Refusal of vaccination may lead to unpaid leave.

Going beyond what Italy, France and Russia have imposed, Greece has now started to require employees to take regular tests, as a general rule, or alternatively to show proof of vaccination or of recovery from Covid-19. Similarly, in Switzerland, from 13 September, employers are authorized to ask employees to provide a Covid-19 certificate (indicating either vaccination, negative test or proof of recovery from Covid-19). Differently from Greece, employers can, certain conditions beings met, ask all employees to show their vaccination certificate, but they have no obligation to do so.   

Italy is going a step further with the new Decree adopted on 16 September, that mandates a “Green Pass” (proving vaccination, negative test of the last 48 hours or recovery from Covid-19) for all employees for access to the workplace, from 15 October until 31 December. The new law introduces an exemption for certain categories that cannot be vaccinated for medical reasons (e.g. pregnant women). The failure of employees to comply with this obligation is subject to fines varying between EUR 600-1,500. Whereas unjustified absences at work because of the lack of the Green Pass can lead to employees not being paid until they show the Green Pass, without any prejudice to the employment relationship and disciplinary consequences. Employers, on the other hand, are subject to fines varying between EUR 400-1,000, in case of failure to adopt by 15 October 2021 appropriate procedures to check the Green Pass or failure to check the Green Pass.

Other European countries are maintaining a more flexible approach, with Austria allowing the possibility of imposing protective measures (and in particular testing and vaccination) for certain groups of (healthcare and alike) employees, but with no general right or obligation of imposing testing or vaccination to employees. In Germany, only employees working in certain sectors  (healthcare, education and more) are obliged to answer the employer’s question concerning their vaccination, testing or recovery from Covid-19 but they are not obliged to get vaccinated. And while proof of vaccination, testing or recovery from Covid-19 (so called 3G approach) or proof of vaccination or recovery (2G approach) is asked in nearly all sectors of public life (e.g. to visit a restaurant), in workplaces only the more usual  measures (distance, masks, ventilation) apply. This approach has not changed when the new version of health and safety ordinance came into place earlier this September. According to the ordinance the existing sanitary measures and the existing duty of employers to offer at least two free tests per week for all employees will be maintained. In particular, employees working in certain jobs with direct customer contact are obliged to take tests twice per week if they do not provide proof of vaccination, testing or recovery from Covid-19.

In addition, the ordinance reads that employers shall enable employees to be vaccinated during working hours and shall inform the employees about the health risk of Covid-19 and about the possibility of a protective vaccination. At State level, there are different initiatives: North Rhine Westphalia and Saxony have made it mandatory that employees returning to the office from holidays take a rapid test, unless they provide proof of vaccination or recovery from Covid-19.

In Spain, the discussion is even lighter, given that vaccination is considered a right and not an obligation and there is already a high percentage of the population fully vaccinated. Hence, employers cannot oblige employees to get vaccinated. Spanish courts have stopped any attempt from regional governments to change this (read more below).

The situation in the UK remains similar to that in most of the European jurisdictions, with no broad legislation requiring mandatory vaccination of employees. The exception is for care home staff where, from November 2021, legislation will require staff to be vaccinated. In its latest guidance, the UK government has outlined a number of suggested measures for the return to office, and the UK government’s latest self-isolation guidance includes an exemption from self-isolation where employees have been fully vaccinated for 14 days.

We are seeing UK employers take various measures in connection with the return to the workplace, including asking staff to take lateral flow tests once or twice a week in advance of going into the office as a mitigation measure. However, the disclosure of vaccination or testing information  by employees is likely to raise data protection and employment law issues. Hence, care should be taken before concluding that it is appropriate to ask employees to disclose the results of any Covid-19 test undertaken, or of their Covid-19 vaccination status. To date, very few UK employers have been pursuing mandatory vaccination for staff (other than in the care home setting as explained above).

Litigation deriving from testing/vaccination requirements

There is very little case law so far. The first claims have been brought in Italy, against employers that imposed testing/vaccination obligations. These are sector specific cases (concerning healthcare employees), where the courts found lawful the employers decisions’ to respond to testing/vaccination refusal by imposing unpaid leave, imposing use of holidays, or reducing salaries. Most recently, in the UK, two care workers who claim that the vaccine mandate is “an unlawful and unnecessary restriction" have challenged the government’s mandate to vaccinate care home staff.

In Spain, courts have been active with a number of decisions suspending regional regulations aiming at mandating vaccination for the whole population. The expectation is that courts will continue to sanction attempts to make vaccination compulsory, either for the whole population or for some categories of workers.

United States

The US president’s latest initiative on vaccination, as announced in early September, is probably the strongest one by any key jurisdiction and will for sure have a wide impact, with other jurisdictions following suit. Vaccination was already made compulsory for federal employees at the beginning of the summer. Some of the exceptions have now been removed. Disabilities and religious objections are still possible but weekly testing is no longer an option to avoid vaccination. The most commented announcement was the one about the private sector: the president indeed asked the Administration to draft a regulation making vaccination mandatory in all business with over 100 employees, with weekly testing remaining an alternative. While the new regulation is awaited, it can be reasonable to expect that employers will continue to be requested to facilitate vaccination by granting paid time off to employees that want to get vaccinated, as provided in the existing Occupational Safety and Health Administration’s guidance.

Conclusion

Because of the regulatory challenges around testing and vaccination in Europe and beyond, we see employers incentivising testing/vaccination by resorting to softer types of tools to be used on a purely voluntary basis and with no personal data collection. For instance, we see employers making free rapid tests available in the workplace for all staff, proposing voluntary and anonymous surveys, launching vaccination information campaigns within the company with the support of occupational health service. Some employers have even gone beyond these and have offered financial bonus for the employees who choose to get vaccinated, but the latter remains a debatable idea.

Testing, vaccination and Covid-19 certificates are often seen as measures that assure both other employees that go to the office and employers themselves of the lack of the infection risk. However, they should only be considered as an additional layer of existing protective measures set by the national laws (including: using protective equipment like masks and hand sanitisers, as well as respecting the social distance), but in no way as a substitute for the continued use of  these measures.