New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

The covid-19 vaccine has not yet been included in the National Vaccination Program (NVP); therefore, it is not mandatory for Argentine citizens in any industry. In addition, there are no proposals to make the vaccine compulsory in any industry, so employers may not compel their employees to receive a covid-19 Vaccination.

However, Resolution No. 4/2021 establishes that employees who choose not to be vaccinated must act in good faith and do everything they can to reduce any health risk their decision may cause to employers. In this sense, if an employee may not or does not want to be vaccinated (it is voluntary), employers should offer an alternative to office working, such as working from home. Moreover, if an employer does not allow unvaccinated or untested employees to enter their premises and does not offer any other alternative, those employees may argue the existence of a discriminatory action on the employer´s side or arbitrary modification of  labour conditions causing potential liability for the employer.

In addition, the following provisions apply regarding vaccination:

  1. employees may act in good faith and provide reliable proof of vaccination, or state (in an affidavit) the reasons why they were not able to access the vaccination, as applicable;
     
  2. employers may request that all employees (regardless of their age and risk condition) return to their workplace if they have received their first dose (at least) of any approved covid-19 vaccine and 14 days have passed since that dose;
     
  3. the Resolution clarifies that the following employees (who were previously exempted from the duty to attend to their workplace) are included in the scenario mentioned in point b: people over the age of 60; pregnant employees; and People included in risk groups;
     
  4. health employees with a high risk of exposure may only be summoned 14 days after completing the vaccination schedule in its entirety (both doses); and
     
  5. in both scenarios (points b and d), the following individuals are still exempt from attending the workplace, even after vaccination: immunodeficient patients; oncological patients; and transplant recipients.
Last updated on 24/01/2022

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Australia

  • at People + Culture Strategies

It is our view that in most cases Australian employers will be able to lawfully direct staff to get vaccinated under the rubric of existing health and safety obligations, and we note that several major Australian employers have already implemented mandatory vaccination directives.

Many sectors are subject to public health orders that effectively require employers in those sectors to have mandatory vaccination programmes in place (including the aged-care sector), and these employers have the government’s support for vaccine mandates.

While the government has stopped short of endorsing mandatory vaccinations for employers across other industries, we consider that on balance a direction to staff to get vaccinated will amount to a “reasonable” direction and recommend employers adopt this approach, which is in line with the duty to eliminate (or if that is not possible, minimise) the risk of exposure to covid-19 in the workplace.

Of course, employers should adopt a case-by-case approach when considering whether to enforce a mandatory vaccination policy or directive in respect of an individual worker. We note there may be individuals in a workforce who have a legitimate basis on which to exempt themselves from any requirement to be vaccinated (for example, a worker who has an underlying medical reason for refusing the vaccine or a conscientious objection on religious or cultural grounds), and may be able to claim that they have been discriminated against if they are subjected to any adverse action as a result of refusing to get vaccinated.

Last updated on 21/09/2021

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Austria

  • at Littler
  • at Littler
  • at Littler

Vaccination is not compulsory at present (but see below and question 10). Employers will not be able to force workers to have a covid-19 vaccination, as long as no corresponding legal basis has been established. However, the legal situation of workers who refuse vaccination has not yet been fully clarified.

Employers might struggle to comply with their duty of care if workers remain unvaccinated. Co-workers, but also customers, would be exposed to a greater risk of infection if workers are unwilling to get vaccinated. Moreover, the set-up of additional protective measures might lead to a considerable increase in costs the employer is unwilling to bear.

Therefore, the employer has two options:                                                                                                                                                                                                                                                                                                                      A transfer of the worker to another workplace with a reduced risk of infection (no contact with customers or co-workers) should be considered first. If the employment contract does not provide for a transfer of workers and the worker refuses to change his or her workplace, the employer could give notice of dismissal with the option of reemployment on altered conditions. Here, for example, a change in working conditions or a change in the place of work would constitute an adequate rearrangement.

However, a dismissal or a dismissal with the option of reemployment on altered terms may not be conditional on vaccination. Yet, if there is no such opportunity for employment, the worker might be legally dismissed as he or she has nowhere to work. The question here too is if the worker can provide other evidence to meet the requirement of a reduced incidence of infection. Besides vaccination, a negative test result or a confirmation of a Covid-19 recovery will serve this purpose.

On 19 November 2021, the government announced that Austria will be the first European country to introduce compulsory vaccination against covid for all people from February 2022. The draft law is in the legislative process. After the National Assembly (one part of the legislative body) gave its approval, the draft will now also be voted on in the Federal Council (the second body). Exceptions to the general obligation to vaccinate will only be possible for medical reasons. For example, religious reasons are not considered according to the draft law. Furthermore, compliance with the vaccination order is "only" ensured by imposing administrative fines for non-compliance.

By creating a corresponding legal basis for a general obligation to vaccinate, it is expected that the employer will be allowed to take action against employees who refuse vaccination. It is conceivable, for example, that the employment relationship could be terminated because the employee cannot be employed due to lack of vaccination and is therefore not ready for work. Nevertheless, the current draft does not bring any legal changes to the workplace for the time being. Here, the 3-G rule continues to apply.

Last updated on 31/01/2022

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Belgium

  • at Van Olmen & Wynant

Although there is an ongoing discussion, the majority of the legal community believes that employers cannot force employees to get the covid-19 vaccine. This opinion is shared by the Federal Public Service of Work, the Belgian Data Protection Authority and the Federal Anti-discrimination Institute (Unia). If there is no legal basis for this obligation, employers seriously risk a violation of the privacy rules of the GDPR and the anti-discrimination Act of 2007 (discrimination based on health status).

Certain voices in the legal community state that an employer could make vaccination mandatory based on an obligation to create a safe and healthy working environment, but this legal basis does not seem specific enough to effectively remove the risks. For now, the Belgian government does not appear eager to create a legal basis for mandatory vaccination, but this could change in the future.

However, the government did reach an agreement regarding the mandatory vaccination of healthcare personnel (which will enter into force in 2022). For now, the legislative proposal has not yet been approved by parliament.

Last updated on 25/01/2022

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

This is still a very controversial matter in Brazil. Recent decisions issued by the Supreme Federal Court have recognised the constitutionality of mandatory vaccination on a federal, state and municipal level in the public system (through the adoption of indirect measures). That being said, it may be possible to apply the same rationale to private work relations. This is mainly because, under Brazilian Law, employers must ensure a safe and healthy work environment that encompasses, for instance, the adoption of preventive measures to tackle covid-19 – including, in a broad interpretation, the vaccine. If on one hand employers must ensure a healthy and safe workplace, then on the other employees must comply with company rules in that regard and cooperate with the company in the implementation of such measures. Thus, considering the Supreme Court’s recent decisions regarding compulsory vaccination and laws on health and safety in the workplace, we understand that there may be some arguments to defend disciplinary measures, even termination of employment with cause, if employees refuse to get vaccinated without a medical justification. This possibility has also been considered enforceable by the Labour Public Prosecutor when publishing certain technical guidelines in January 2021. However, the president of the Superior Labour Court has informally indicated that termination with cause should not be applied in the event of refusal – whereas other justices of the Superior Labour Court have agreed with such a measure. Therefore, there is still no consensus as no decision on this matter has been issued so far by the labour courts. In any case, the following recommendations would apply: the adoption of preventive measures such as educational campaigns about the importance of vaccination and the legal implications of an unjustified refusal; and to evaluate the possibility of terminating an employee with cause on a case-by-case basis. In such an instance, the following will be considered: the reasons for the employee’s refusal; if the employee is under any type of job protection; if the applicable collective bargaining agreement provides for something specific in that regard; if the employee can be moved to a work-from-home arrangement; and if there is any court decision regarding the matter when such termination is planned to occur.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Employers can require that their employees are vaccinated only if the vaccination is made mandatory by the French Public Health Code.

In France, vaccination against covid-19 has not been made mandatory (except for health professionals). Therefore, French employers cannot force their employees to be vaccinated. However, they can recommend it to their employees without forcing them (please note that due to the Law of 5 August 2021, employees are entitled to leave to attend covid-19 vaccination appointments).

Please note that a law was passed by Parliament on 5 August 2021 and states:

  1. To make access to certain places, establishments or events conditional upon the presentation of either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following covid-19 infection.

This would only cover the following activities:

  • recreational activities;
  • bars and restaurants (except company restaurants), including terraces;
  • department stores and shopping centres by decision of the Prefect of the district in the event of risks of contamination under conditions guaranteeing access to essential shops and transport;
  • seminars and trade fairs;
  • public transport (trains, buses, planes) for long journeys; and
  • hospitals, homes for the elderly and retirement homes for companions, visitors and patients receiving care (except in medical emergencies).

In those specific cases, from 30 August 2021, an employer undertaking the above activities may ask their employees to present one of these documents, including proof of vaccination status. If an employee is unable to present such documents and chose, in agreement with their employer, to not use paid holidays, the employer can suspend the employee’s contract, on the same day. This suspension, which can lead to an interruption of salary, ends as soon as the employee produces the required proof.

If the suspension goes beyond three working days, the employer shall invite the employee to a meeting to attempt to rectify the situation, including the possibility of temporarily reassigning the employee to another position within the company not subject to this obligation.

  1. Mandatory vaccination for health professionals, including those working in an occupational health service according to article L.4622-1 of the labour code.

The health professionals listed in article 12 of the law of 5 August 2021 (doctors, nurses, doctors working in occupational health services, osteopaths etc) must be vaccinated as of 9 August 2021, unless there is a medical contraindication or a certificate of recovery can be presented.

Please note that the law provides for a transition period as follows:

  • up to and including 14 September, the staff concerned may present a negative test  that is less than 72 hours old (RT-PCR screening test, antigen test or self-test carried out under the supervision of a health professional) if they are not vaccinated;
  • between 15 September and 15 October inclusive, when an employee has received the first dose of vaccine, he or she may continue to work provided that he or she can present a negative test result; and
  • from 16 October 2021, they must present proof of the complete vaccination schedule.

This obligation does not apply to people who perform occasional tasks. The Ministry of Labour defines “occasional tasks” as a very brief and non-recurring intervention that is not linked to the normal and permanent activity of the company. Workers who carry out these tasks are not integrated into the workgroup and their activity is not public-facing.

This may include, for example, the intervention of a delivery company or an urgent repair.

On the other hand, the following are not occasional tasks: carrying out heavy work in a company (eg, renovation of a building) or cleaning services, because of their recurrent nature.

When carrying out an occasional task, the workers concerned must ensure that they comply with social distancing rules.

Employees who have not presented one of these documents can no longer work. Thus, when an employer finds that an employee can no longer carry out their work, the employee must be informed without delay of the consequences of this prohibition, as well as the means to rectify the situation. A dialogue between the employee and employer to discuss ways of rectifying this situation is encouraged.  An employee who is prohibited from working may, with the employer's agreement, use days of rest or paid leave. Otherwise, their employment contract will be suspended.

The suspension of the contract, which leads to the interruption of salary, ends as soon as the employee fulfils the conditions necessary to continue working.

When the employer or the regional health agency finds that a health professional has not been able to carry out their role for more than 30 days, it informs the national council of the order to which they belong.

Please note that, according to the law of 5 August 2021, the employer must inform the new works council (CSE) of measures taken to implement any obligations to verify the vaccination of health professionals or the health passes of employees who come under the aforementioned sectors.

Last updated on 21/09/2021

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Germany

  • at CMS Hasche Sigle

Employees in health care and nursing facilities will be legally required to be vaccinated against COVID-19 as of March 16.  Accordingly, employees must submit proof of vaccination or recovery by March 15, or they must have proof that they are medically exempt from the requirement to be vaccinated against coronavirus. Employers are supposed to check the vaccination or recovered status of their employees and submit the proof to the health department upon request. Failure to do so will be treated as a misdemeanour.  As of March 15, the health department can then issue a prohibition against affected persons entering the company or facility. If, as a result, the employee is unable to perform his or her contractually agreed activity, he or she has no claim for compensation against the employer. If an employee persistently refuses to provide proof of 2G or a medical certificate of contraindication, the entitlement to continued payment of remuneration ends. Some courts even accept that the employer terminates the continued payment of wages even before a decision by the health authorities. Whether the lack of immunisation also entitles the employer to terminate the contract is disputed, because the obligation to immunise in health care and nursing facilities is due to end on 31.12.2022.

In other sectors will be no legal obligation to be vaccinated against covid-19. Nevertheless, there is an ongoing discussion to change that situation.

Thus, an obligation to be vaccinated cannot be agreed in an employment contract; it would deviate from the basic principles of the statutory rules and therefore be invalid according to the law on general terms and conditions.

Nor can an obligation to be vaccinated be introduced through a works agreement and stipulated by the employer and works council. According to the established case law of the German Federal Labour Court, the parties to a works agreement are bound by the fundamental rights of the German constitution. In this regard, the physical integrity of the employees who are not willing to be vaccinated, which is protected under the German constitution, outweighs the employer's interest in making vaccination compulsory in the workplace.

However, it is not just permissible for employers to promote vaccinations of employees. New legislation leads to the obligation on employers to enable employees to be vaccinated against covid-19 during working hours. Employers shall provide organisational and staffing support to company doctors and the inter-company services of company doctors who carry out protective vaccinations in the company for reasons of population protection. Within the framework of instruction, employees shall be informed by the employer of the health hazards involved in contracting covid-19 and shall be informed about the possibility of protective vaccination. In addition, it is permissible – if controversial – to provide incentives for vaccinations in the form of a bonus. In any event, it is important to avoid discriminating against employees who cannot or do not wish to be vaccinated because of pregnancy, disability or for religious reasons.

Last updated on 14/04/2022

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Greece

  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm

Covid-19 vaccination is not mandatory. However, based on a newly introduced law,  vaccination is mandatory for employees working at nursing homes and for medical staff (doctors, nurses etc) and employees working at hospitals.

Last updated on 21/09/2021

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

As of to date, employers in Hong Kong do not have a statutory right to require their employees to receive covid-19 vaccination. That being said, the government has already made covid-19 vaccination compulsory for civil servants, healthcare workers, care home staff and school teachers. The government has also been urging employers in certain private sectors to mandate covid-19 vaccination for employees.

Further, in order to boost Hong Kong’s vaccination rate, the government has, in February 2022:-

  1. introduced the vaccine pass rules which require all visitors, including employees (except for certain exempted groups), to be covid-19 vaccinated when entering certain premises, such as shopping malls, restaurants, department stores, supermarkets, and hair salons;
     
  2. published the Employment (Amendment) Bill 2022 (the “Amendment”) which provides (amongst other things) that it is a valid reason to dismiss an employee who refuses to comply with a “legitimate vaccination request”. A “legitimate vaccination request” requires a non-exempted employee to show that he/she has received at least one dose of vaccination (the required number of doses of vaccine progressively increases overtime). Although the Amendment has not yet come into force as of to date, it is expected that this will take place soon.

In light of the abovementioned government actions, we have seen an increasing number of employers, especially those in the food & beverage, hospitality, aviation and healthcare sectors, implementing a mandatory vaccination policy for its employees to meet their operational needs.

It is also noted that the Amendment in relation to valid reason for dismissal will have a sunset clause. This means it will be repealed when the pandemic is no longer a matter of public health concern.

Under common law, employees are expected to comply with any “lawful and reasonable” direction from their employer. It is lawful to request that an employee be vaccinated, but there is a question over whether it would be considered reasonable. An employer’s health and safety obligations are often cited as to why such a direction would be reasonable. The reasonableness would largely depend on the particular sector the employee works in, the employee’s role and nature of duties, his or her contact with people, whether the role can be carried out remotely without issue, and whether the vaccine pass rules apply to the employee’s workplace. Certain sectors, such as food & beverage, hospitality, aviation and healthcare, may be able to justify that it is reasonable to mandate employees be vaccinated due to the high-risk nature of the jobs and the workplace they are in.

If an employee refuses to receive a covid-19 vaccination, an employer cannot force the employee to be vaccinated. It could decide to do one of several things:

  • (when the Amendment comes into force) require the employee to comply with a “legitimate vaccination request” and a failure to do so could be a valid reason for dismissal;
  • request that the employee undergo regular covid-19 testing instead;
  • agree with the employee that they can temporarily work from home (if that is possible given the employee’s role): and
  • agree to a change of role for the employee (if their current role requires being in the workplace).

This is not an exhaustive list.

Last updated on 06/04/2022

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India

  • at Nishith Desai
  • at Nishith Desai

Vaccination in India is voluntary. Employers cannot legally mandate employees to receive a covid-19 vaccination. 

Employers may, however, refuse the entry of employees to the workplace if they are not vaccinated. However, it may not be possible to cut wages or terminate employment on the basis that an employee is not vaccinated.

Please refer to our article published in the International Employment Lawyer on this topic, including recent case law in India. This is an evolving area and we expect more developments in due course.

Last updated on 18/11/2021

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Ireland

Ireland

  • at Littler

Realistically, no. There is no specific prohibition on employer-mandated vaccination in Ireland, but it will be difficult for employers to justify making vaccination mandatory under existing Irish employment law principles. Employers can, however, encourage employees to get the vaccine.

Employer-mandated vaccination presents several significant risks to employers: breaching the implied term of trust and confidence in employment contracts, giving rise to constructive dismissal claims; legal arguments that the requirement is an unconstitutional encroachment upon an employee’s private life; data protection issues; and discrimination risks.

Current government guidance, as set out in the Work Safely Protocol is that the decision to get a vaccination is voluntary and that workers should therefore make their own decisions in this regard.

However, the guidance does recognise that there may be certain circumstances where it is deemed that an unvaccinated worker is not safe to perform certain work tasks and in such circumstances, the employer may have no option but to redeploy the worker to another work task. Any such decision needs to be agreed upon between the employer and a medical practitioner in consultation with the worker.

Last updated on 13/01/2022

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Italy

  • at Toffoletto De Luca Tamajo

As a general rule, employers cannot require employees to disclose their vaccination status. On the other hand, according to the current Italian Covid-related legislation, the company’s occupational doctor could decide to consider the vaccine as a condition for working in the office and/or consider unvaccinated employees as unfit or without the necessary requirements for gaining access to the office (without specifying the reason to the employer). In this hypothesis, the employer should verify whether the employee can work remotely or can be assigned to different duties and, if none of the above options are available, the employer may also suspend the employee without remuneration (once he/she has used up the accrued paid leave and holidays). In this respect, recent Italian case law on this matter (Tribunal of Modena of 19 May 2021 and Tribunal of Rome of 27 July 2021) stated that employees have an obligation to actively cooperate with employers in relation to health and safety in the workplace and that a violation of this obligation may entail consequences for the employment relationship, including the employee possibly being exempted from performing the work activity with no remuneration, confirming in such cases the legitimacy of an employee suspension by the employer.

However, in some hypothesis Italian law requires employees to be vaccinated to carry out their activity or requires to have specific certification to enter company’s premises (see answers below).

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

Employers are not authorised to mandate or demand employees to receive a covid-19 vaccination. If an employee refuses the covid-19 vaccine, their employer may not terminate their employment contract or impose any other sanction. However, employers may implement preventive measures according to the provisions for the reopening of workplaces, which employees must comply with. If an employee does not comply with such preventive measures or policies, their employer can terminate the employment contract with justifiable cause. It is important to mention that the employer must have abundant evidence of a policy breach by the employee for the termination to be justifiable if a lawsuit were to be filed by a dismissed employee.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

An employer cannot require or mandate that their workers receive a covid-19 vaccination. Under Dutch law, as stated in the Dutch constitution, vaccination is voluntary (the sanctity of human life).

Employers may, however, encourage their employees to get vaccinated of their own free will, for example by promoting vaccination. Still, it is vital to exercise caution when promoting vaccination, as employees might easily feel that they are being “pressured” by their employer and are being limited in their decision whether or not to get vaccinated.

Furthermore, an employer can ask employees about their vaccination status, if the employer has a 'good reason' to do so. Such “good reason” entails that the question on the vaccination status is (i) proportionate, (ii) necessary to achieve a legitimate purpose and (iii) the purpose cannot be achieved by less dramatic measures. Possibilities seem limited. Employers must also take into account the GDPR, as they are not permitted to process data about the vaccination status of their employees.

More information can be found here

Last updated on 08/03/2022

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Poland

  • at Bird & Bird
  • at Bird & Bird

No, a blanket requirement is highly risky for most employers.

Employers cannot force employees to be vaccinated. Consequently, employees cannot be exposed to any adverse consequences for not being vaccinated.

Vaccines are available only via the government-run National Vaccination Programme, and all employees qualify for the vaccine (individual reasons may disqualify a person from vaccination).

However, all employers may actively promote vaccination. The Polish Labour Inspectorate has confirmed that employers may offer non-financial incentives to promote vaccination (ie, an extra day off to be vaccinated). If this option is chosen, we recommend that you plan ahead, have a clear, consistent communication strategy, and actively engage with employees.

Last updated on 21/03/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

No, vaccination against covid-19 is not compulsory in Portugal, not even for so-called risk groups such as medical personnel or social workers. For the time being, employers cannot force employees to be vaccinated or ask them to provide information on their vaccination status; they can only recommend vaccination. Without the Portuguese parliament passing a law making vaccination compulsory, no private or public entity can force its employees to get vaccinated.

Furthermore, to implement a compulsory policy, employers would most likely have to obtain vaccination certificates from their employees, which would be unlawful under the Portuguese labour law.

Last updated on 07/03/2022

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Qatar

  • at Clyde & Co
  • at Clyde & Co

At present, there is no policy of mandatory vaccination in Qatar. It is therefore not compulsory for individuals to get vaccinated.  

If employees are unvaccinated or do not reveal their status, an employer would need to consider alternatives; including permitting remote work if this is suitable for the employee’s role or potentially putting in place other measures in the workplace such as separating unvaccinated employees from vaccinated employees, or requiring negative PCR tests instead of vaccinations.

Employers have the right to terminate employment contracts. Any termination must be carried out in compliance with the terms of the Qatar Labour Law and the employment contract (including the notice period if applicable and the payment of all pending entitlements).

Last updated on 08/11/2021

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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

The MHRSD has mandated vaccination for all adults over 18 years of age if they wish to attend the workplace, with an implementation deadline of 1 August 2021.  Within KSA, all individuals must have downloaded the Tawakalna App and show their “green” status to enter all public spaces (which includes the workplace, malls, cinemas and, stores). Following the expiry of the 1 August deadline, the MHRSD issued guidance to employers regarding non-vaccinated employees, instructing them to take the following graduated measures:

  • permit employees to work from home if their role permits this;
  • ask employees to take their accrued untaken leave;
  • ask employees to go on unpaid leave; or
  • take measures in line with the KSA Labour Law, which potentially could include termination of employment.

With such a strong government policy in place, employers must enforce compulsory vaccination.

Last updated on 29/11/2021

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

No, they cannot require it. Indeed, employers are not even permitted to ask their employees whether they are vaccinated.

This is personal health data, which is a special category of personal data under article 9 of the GDPR, and its processing is subject to stricter requirements than ordinary personal data.

As such information is not necessary for carrying out the employee’s obligations under the employment contract, and there is no legal authorisation for employers to process such data, employers cannot ask for this information and, if employees voluntarily provide it, employers cannot implement any measure for employees based on it. If employers implement any such measure, it could be deemed null, as it could be seen as a retaliation against the right to refuse vaccination.

Last updated on 21/09/2021

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Sweden

  • at DLA Piper
  • at DLA Piper
  • at DLA Piper

There are no statutory regulations regarding vaccination requirements in Sweden. However, an employer cannot compel an employee to get vaccinated, and as a main rule, a refusal by an employee to get vaccinated does not constitute a basis for termination of employment. A requirement by an employer for employees to get vaccinated has not been tried legally, but the possibility to demand an employee to get vaccinated is likely very limited. That being said, pursuant to the Work Environment Act, employers must take all necessary measures to avoid risks of injury or ill-health at work. If no other measures than the vaccine are available to ensure a safe environment (eg, other protective measures such as social distancing, wearing face masks or cleaning are deemed inadequate), and if the business cannot eliminate the risk of infection through other protective measures such as working from home, it may be justified to require employees are vaccinated to work from the office. A refusal to get vaccinated by the employee may in such a case have consequences for their employment; for example, the employer may be entitled to move the employee to another position. Such measures shall only be taken if there are special reasons for doing so, based on the needs of the business. The nature of the business will be of importance when making such a legal assessment; for example, if the nature of the work performed justifies such a requirement (health workers in certain medical fields). The legal assessment must thus be made based on the circumstances in each case.

It is important to note that a refusal does not automatically mean that the employer may terminate the employee. The employer must observe the formal rules in the Swedish Employment Protection Act and ensure that there is “just cause” for termination. This would, inter alia, include an obligation to review and offer the individual any free positions within the company the employee is qualified for (and for which the employee doesn’t need to be vaccinated for work environment reasons) before termination of employment can come into question and the threshold for just cause for termination may be reached. 

Last updated on 24/01/2021

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Switzerland

  • at Lenz & Staehelin

Generally speaking, employers must take measures to protect the health of employees. However, in principle, they are not entitled to require employees to be vaccinated, unless there is an overriding interest based on the principle of proportionality.

The State Secretariat for Economic Affairs (SECO) has stated that an employer can require employees to be vaccinated under specific circumstances, such as when there is an elevated risk of contamination that cannot be mitigated via other protection measures. Further, the employer must weigh the different interests (ie, the employee's private life versus the covid risk) for each individual case. Moreover, the SECO has stated that a company may not impose a general vaccination obligation.

If vaccination can be mandatory and if an employee refuses to be vaccinated, their employer could terminate the employment contract. That decision must be proportionate and must be based on the specific circumstances of the case.

Last updated on 20/01/2022

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Turkey

  • at Gün + Partners
  • at Gün + Partners
  • at Gün + Partners

As per the Constitution, a person’s physical integrity cannot be interfered with except for medical necessity and exceptions set out by the law. As the covid-19 vaccination is not defined as a mandatory vaccine under the applicable laws, employers cannot make vaccinations mandatory for employees in principle. Indeed, the Ministry of Health announced that covid-19 vaccinations are voluntary.

The only mandatory vaccine under the current legislative framework is the smallpox vaccine.

The majority of Turkish academics take the view that termination for refusal to take a vaccine would not constitute rightful or valid grounds for termination. It also would not comply with the principle of termination being the last resort, as employers may proceed with other options such as encouraging employees to get vaccinated or implementing remote working. However certain academics argue that refusing to take a covid-19 vaccine may be valid grounds for termination in exceptional cases (such as employees in elderly care institutions).

The Ministry of Labour and Social Security issued a general letter dated 2 September 2021 regarding vaccination and testing policies that employers may apply in workplaces. The letter suggested  employers should: (i) inform all employees about protective and preventive measures against potential health and safety risks at the workplace; (ii) provide separate information in writing to employees whose covid-19 vaccinations are not complete; (iii) inform unvaccinated employees about the potential results of receiving a covid-19 diagnosis due to unvaccination within the scope of the labour and social security legislation; (iv) require that unvaccinated employees have regular PCR tests once a week as of 6 September 2021; and (v) record the test results at the workplace for any necessary action.

The fact that these arrangements were introduced by a letter from the Ministry  was heavily criticised by legal academics and practitioners, and legislators were expected to bring a law into force soon. However, pursuant to the changing policies of Turkish government regarding covid-19 as evidenced in a letter dated 14 January 2022 from the Ministry of Health, the Ministry of Internal Affairs issued a new general letter on 15 January 2022 that limited the scope of mandatory PCR testing.

Please see question 10 regarding a new general letter issued by the Ministry of Internal Affairs concerning limits on mandatory PCR testing requirements.

Last updated on 09/02/2022

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UAE

  • at Clyde & Co
  • at Clyde & Co

At present, there is no policy of mandatory vaccination in the UAE. It is, therefore, not compulsory for individuals to get vaccinated but it should be noted that in the Emirate of Abu Dhabi the authorities have taken steps to make it very difficult for individuals who are not vaccinated to access public spaces. While vaccination is not mandatory, the UAE government both on a federal and emirate level have taken steps to encourage vaccination and aim to have all adults in the UAE vaccinated by the end of 2021. Employers are, therefore, in a good position to encourage employees to get vaccinated and can take several measures to encourage it.  

If employees are unvaccinated or do not reveal their status, an employer would need to consider alternatives, including permitting remote work if this is suitable for the employee’s role or potentially putting in place other measures in the workplace such as separating unvaccinated employees from vaccinated employees, requiring negative PCR tests instead of vaccinations.

In the absence of a UAE government-mandated vaccination requirement to attend the workplace, termination for failure to take the vaccination could be assessed by a Labour Court as unfair.

Last updated on 08/11/2021

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United Kingdom

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In almost all cases, no, an employer could not issue such a requirement or mandate. However, this answer needs to be read in conjunction with the answer to question 9, below.

Absent specific legislation enabling them to do so, employers who attempt to force their staff to be vaccinated may face potential constructive dismissal claims, data protection issues, and discrimination allegations.

At the time of publication this issue remains a highly controversial one, producing significant public debate, and the legal position may change quickly.

Specific legislation dealing with this issue is very limited. In the care homes sector, regulations were made requiring staff to be vaccinated, with effect from 11 November 2021. There are limited exemptions, including on medical grounds and for emergencies. The government is exploring whether to extend this to all health and social care workers with face-to-face contact with patients and service users, unless they are exempt. On current proposals, this would be effective from 1 April 2022, but it is not yet binding law and faces substantial opposition.

The Government has stated that it has no current intention of making Covid-19 vaccination mandatory more generally, but this position needs to be monitored.

Without specific legislation, the general legal position in the UK is that an employer has a legal right to issue “lawful and reasonable” instructions to employees, which they are required to comply with. Although the position has not yet been tested before the UK’s courts and tribunals, it is unlikely that a generic requirement or mandate for employees to be vaccinated would meet this test.

There may be a case for making vaccines mandatory for specific workers undertaking specific activity in certain health-care-related roles; however, again in the absence of legislation the issue is not so much whether the employer can mandate vaccination as opposed to what steps the employer is entitled to take if an employee is not vaccinated. Even if a case could be made for requiring staff to be vaccinated, an employer would need to carefully consider issues relating to data protection and discrimination.

Finally, ACAS has issued recent guidance on supporting staff through the vaccination process: see here.

Last updated on 13/01/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for covid-19, accommodations must be made for those with religious objections or a disability.  Another option is to consider having employees show vaccination proof or submit to weekly covid-19 testing, wear masks, and keep physically distant from other workers and visitors.  Employers can also encourage and incentivise employees to get vaccinated by offering prizes, developing vaccination education campaigns, offering vaccinations on-site, covering any costs that might be associated with getting the vaccine, or providing paid time off for employees to get the vaccine and recover from any potential side effects. However, state lawmakers have introduced dozens of legislative proposals to make it harder for employers to require that employees get a covid-19 vaccine.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021