Measures aimed at reducing the spread of COVID-19 remain a priority for global employers. Last year saw the emergence of a global discussion around mandatory vaccination in the workplace (read our September blog post for more detail). This year, the focus in some jurisdictions has shifted towards mandatory vaccination of the population at large. While the approach in different jurisdictions is far from consistent, this blog post sets out the latest position on vaccination and explains what we can learn from recent case law.
What is the situation across Europe?
Austria is the first country in Europe to impose mandatory vaccination on its entire adult population. The implementation of the Austrian Vaccination Act (the ‘Act’), which will remain in force until 31 January 2024, imposes fines of up to EUR 3,600 for non-compliance.
The Act does not contain any rules that specifically concern the workplace. Instead, entry to the workplace remains subject to the “3G” rule (proof of vaccination, a recent negative test or a recent recovery from COVID-19). However, employers are free to impose stricter rules (such as mandatory vaccination for entering the workplace), and the Act may assist employers who need to justify doing just that. You can read more in this blog post dedicated to Austria.
Not quite reaching the threshold set by Austria, Italy was the first country to mandate vaccination of individuals over the age of 50. For the remainder of the population, Italy recognises two types of COVID-19 passes, a ‘Green pass’ (a negative COVID-19 test, vaccination or proof of recovery from COVID-19) which is valid only for a limited number of activities, and a ‘Super green pass’ (proof of vaccination or recovery from COVID-19).
There has also been some interesting case law on vaccination in Italy. The Labour Court of Modena sided with an employer who suspended two employees until they were fully vaccinated. The employees were physiotherapists and the law at the time mandated the vaccination of all health professionals.
Greece has followed suit, by imposing mandatory vaccination for individuals over 60 years old.
In Germany, the focus of public attention is currently on the mandatory vaccination for individuals working in health and care sector as of 15 March 2022, which is accompanied by protests and public and political discussions, triggered by concerns of (even worse) staff shortages in these areas due to the mandatory vaccination. As for mandatory vaccination for the entire population, discussions are still ongoing but there is no draft law as yet and it is unclear whether any such law would pass through the legislative process.
In January, the French Parliament adopted a new law that requires people to show a vaccine pass in order to access public places, such as bars, restaurants or hospitals. The vaccine pass will be granted only if individuals are able to prove full vaccination or recovery from COVID-19. Unlike the Italian basic ‘Green pass’, a recent negative COVID-19 test will not be sufficient to obtain the French vaccine pass.
Similar to Germany, the UK had intended to focus its mandatory vaccination laws on the health and social care sector. Since November last year, anyone working in a care home has needed to be fully vaccinated and mandatory vaccination for all health and social care settings was due to come into force from 1 April this year.
There is only one ‘no jab no job’ decision that has come out of the UK employment tribunal so far. In the case of Allette v Scarsdale Grange Nursing Home Limited, the employment tribunal held that the dismissal of a care home nurse for refusing vaccination was fair. This case took place before vaccination was mandated for care home staff in the UK, but was an unsurprising decision given the facts – the COVID-19 infection rates were soaring at the time of the case and some of the care home residents had already died from COVID-19 (see this blog post for more detail).
However, UK government ministers have recently said that they will be dropping their mandatory vaccination plans for all health and social care settings. It is therefore possible that future vaccination cases will be decided differently.
What is the situation outside of Europe?
It is expected that the Hong Kong Employment Ordinance will be amended such that dismissals of unvaccinated individuals working at ‘scheduled premises’ will not be considered unreasonable. However, there is no mention of amending the Disability Discrimination Ordinance. Therefore, employers should be mindful that terminating an employee who cannot be vaccinated due to medical reasons, for example, could give rise to a disability discrimination claim.
In early September last year, President Biden asked the federal administration to draft a regulation making vaccination mandatory in all businesses with over 100 employees, with weekly testing remaining an alternative. However, last month, in National Federation of Independent Business v. Occupational Safety and Health Administration; and Ohio v. Occupational Safety and Health Administration, the US Supreme Court invalidated the vaccination mandate, ruling that the Occupational Safety and Health Administration lacked the competence to regulate public health beyond occupational dangers. Contrast this to Biden v Missouri, where the US Supreme Court upheld the decision to mandate vaccination for healthcare workers. It remains to be seen where the approach will land.
In Kok vs Ndaka Security and Services, the claimant, who was a front-line essential services employee and therefore required to be vaccinated in order to access the workplace, claimed that he relied on his faith and his body’s natural immunity (given that he had previously had COVID-19) to refuse vaccination. The tribunal ruled that, in certain instances, the public interest argument outweighs the right to bodily and psychological integrity of individuals. As a result, the claimant’s argument was rejected.
How should global employers move forward?
COVID-19 measures are changing fast across the globe, with some jurisdictions on opposite ends of the spectrum in terms of their approach to mandatory vaccination. While it might be tempting for global employers to operate blanket global policies to make their ‘return to office’ in each jurisdiction as consistent as possible, it is difficult to ignore the nuances of local laws, guidance and case law. Only allowing vaccinated individuals to enter the workplace in Austria will be very different from mandating vaccination in an office environment in the UK, for example, and employers should be mindful of the legal and practical implications of their decisions.