By Tessa Cranfield, Paul Cutrone, Julia Gorham, and Daniel E. Waldman

Seyfarth Synopsis: With the announcement of the roll out of the Pfizer/BioNTec COVID-19 vaccine commencing in the UK last week (week of December 7, 2020) and vaccination roll out to commence in the US in due course, international employers are considering their options to mandate or direct employees to get vaccinated as part of their overall organizational business continuity strategies and to manage the health and safety of employees, workers, and their underlying customers/client base for those with outward facing businesses.

The global approach to employers directing employees to get vaccinated varies widely outside of the US, both due to divergent cultural and legal issues and the fact that many governments will control the purchase, flow, and roll out of COVID-19 vaccines rather than private companies/citizens.

Why does the rest of the world differ from the US?

The concept of private employers mandating any form of vaccine goes against principles of autonomous decision making, fairness, and excessive employer involvement in employees’ private lives—concepts closely guarded in many countries and often enshrined into their local employment laws and cultures. The European Convention on Human Rights, for example, provides the right to physical and psychological integrity (subsumed within the Article 8 right to respect for private and family life), which would directly contradict any mandatory vaccination request made by an employer to its workforce. Similarly, countries such as China and Indonesia also recognize an individual’s personal right to decide their own health matters.

Outside of the US, the risk of lawsuits against companies from members of the public alleging infection by a company employee is generally lower. Given this, the COVID-19 vaccine has not been a frontline risk mitigation strategy to prevent private or class action lawsuits in the corporate arena. Without that context, other countries focus more on health and safety protections (which are a key focus for negotiation between employers and employee representatives or works councils) and reducing the social impact of COVID-19, with governments generally directing the approach. Asia has taken the lead this year in terms of dovetailing practical management of workforces with strict health and safety regimes and government directives. For example, South Korea has some of the most stringent health and safety and privacy frameworks, and Singapore is utilizing technology to the fullest to help manage its response to the pandemic.

Can a private employer justify directing employees to vaccinate?

Given that governments have typically assured citizens that vaccination will be voluntary, this is unlikely at this stage. For employees who are generally classed as essential workers, frontline health workers who have direct access to vulnerable members of the public, etc. (in each case as determined by local authorities), then it may be a reasonable and lawful instruction for their employer to direct that they obtain a COVID-19 vaccine if that is recommended by the relevant local government. Likewise, if the workplace or site is accessed by vulnerable members of the community, it may be justified that staff working at that site have the vaccine, once available.    Failing to do so may mean that they are unable to perform their role. Even then, outside of the US, a mandatory requirement is unlikely to be enforceable, and the majority of jurisdictions will operate this via a request or direction that is ultimately voluntary. In contrast, the Australian Government Department of Health guidance is that if workers have a significant occupational risk of acquiring a vaccine-preventable disease, their employer should implement a comprehensive occupational vaccination program.

For employees falling outside of those categories, a private employer is likely to have to objectively justify why that direction is reasonable and necessary given the nature of each employee’s role and take into account whether less intrusive measures that have become commonplace over the past 12 months can sufficiently provide adequate protections (for example, use of face coverings in the workplace, sanitization, remote/home working, split shifts, etc.). If an employer is unable to justify a direction to vaccinate and takes adverse action against employees who fail to comply, the direction is likely to be deemed unlawful in many countries. This could also lead to a variety of claims, including breach of contract, constructive dismissal, statutory claims for detriment/adverse action, discrimination, health and safety or workers compensation claims if an employee became ill from the vaccine, etc., subject to the local law environment in the country in question. It may also lead to industrial action in collective, unionized environments.

Employees who have underlying health conditions, who are pregnant, or who have particular religious or political beliefs may be exempted from any employer direction to vaccinate or may be specifically protected via statutory protections under local laws.

There is also the question of the relative safety standards of the various different vaccines that may become available. There will be a medical professional and public view on whether or not individuals are willing to take certain vaccines, which may also limit an employer’s ability to direct participation of employees in any program of vaccination. Particularly strong employee pushback may occur in jurisdictions in which there is more widespread public reservation against the vaccine, as has been reported in France and the Netherlands. In such instances, employers must take particular care in ensuring that the rationale behind their approach to the vaccine is thoroughly communicated with staff, and these are often the jurisdictions where there will also be a requirement to agree these programs with works councils or other employee representatives before communicating directly with employees.

Private employers should review the makeup of their workforce to see if it has categories of roles/employees who are deemed essential or who have direct access to vulnerable members of the community, etc. based on the guidelines in each jurisdiction. It should then identify any high risk or exempted employees and make arrangements to assess any individual religious or political beliefs as needed. Once that assessment has been done, and before giving directions to relevant employees regarding participation in any vaccination program, the employer should also ensure that it has complied with any necessary consultation procedures set out in any employee work rules, handbooks, or as mandated under any collective bargaining or works council procedures.

If vaccination cannot be mandated, what options do employers have?

Given in most countries employers will not be able to require vaccination at this stage, what options does an employer have? Most employers will want to encourage employees to be vaccinated, and may even look to incentivize them or pay for the vaccine if that is an option (see more below). But beyond this, what can an employer do if an employee cannot fully perform without a vaccine? For example, a sales rep whose role requires them to visit healthcare settings where vaccines become mandatory, a manager whose role requires regular international travel where airlines insist passengers are vaccinated, or more questionably, where other employees refuse to work with colleagues who have not been vaccinated given the risk they pose? Although generally local laws will not permit mandatory vaccination, where assessed on a case by case basis, they may allow remedial action such as pay reduction or even termination where an employee cannot substantively carry out their role in this situation. An employer would however need to have done careful groundwork, in terms of showing consistent treatment across its workforce, looking for any scope to flex the employee’s duties and following local process. As take up of the vaccine increases across the public and across the employer’s workforce, local Courts may become bolder in supporting employer action, however.

Access to COVID-19 vaccines

The majority of COVID-19 vaccine stocks are being controlled by the relevant governments, as is the roll out mechanism in each country. Some countries, such as India, have specific legal regimes that provide the right for the government to mandate vaccination of the population in specific circumstances; however, it is currently unlikely that this approach will be utilized.

Given this, currently the most a private employer may be able to do is to encourage/request employees in relevant roles to participate in applicable government/community vaccine programs (subject to exemptions and other factors). It is unlikely that private employers will have any form of direct access to COVID-19 vaccines in the short or medium term given that governments across the world are prioritizing access for essential workers, older age groups, and at risk groups/industries. While there may be some scope that private hospitals and private clinics will have access to stocks of vaccine that private employers could purchase for their staff, that is presently not the case. This means that it is currently unlikely that any direction by a private employer for employees to obtain a COVID-19 vaccine can be fulfilled unless or until the employee qualifies for the vaccine in accordance with the rollout priorities of their country in question as authorized by the relevant government authorities.

Based on the current assessment of rollout priorities, the majority of the younger and middle aged healthy workforce populations are unlikely to qualify for early vaccination as the other social categories will take priority.

What does this mean for workforces in 2021?

The World Health Organization and other medical authorities have been clear that the commencement of vaccination does not mean that social distancing and other protection measures can fall away. We have to assume that it will be a significant period of time before the bulk of company workforces have been vaccinated, and that could be well into 2021, possibly 2022. Consequently, employers need to continue to adopt other practices for good health and safety management.

For example, can you have employees working in premises who have not had a vaccine?  Yes, unless there are specific health and safety reasons why this is not acceptable for a particular workplace—or potentially, where their colleagues object. It is unlikely to be practical or reasonable to make re-opening of all general work premises conditional on vaccination. That is not the market standard in the majority of countries. Where this is allowed by local health requirements, the employer must ensure that it has taken all of the other necessary health and safety measures recommended, for example, use of face coverings in the workplace, temperature checking, use of QR codes and tracing apps, sanitization, remote/home working, split shifts, etc.

Another regular example is work travel. There is currently no general prohibition on employees travelling without a COVID-19 vaccination certificate (subject to local quarantine and travel restrictions). That may change as vaccines become more widely available and as countries/airlines introduce proposed electronic health passports. So, if you need staff to travel can you request this without a vaccine? Yes, potentially if other safety measures are taken and the employee feels sufficiently protected and supported.

A one size fits all approach is unlikely to be workable. And in much the same way as the events of 2020 could not have been predicted, we can expect there to be rapid changes in 2021 in public opinion on the vaccine shifting, and potentially new scientific evidence presenting a more compelling case. The goalposts for employers are likely to shift again.