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.

Choose countries

 

Choose questions

Choose the questions you would like answering, or choose all for the full picture.

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

Flag / Icon

Argentina

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

As mentioned in questions 7 and 8, Resolution No. 4/2021 established that employees who choose not to be vaccinated must act in good faith and do everything they can to reduce the health risks their decision may cause to employers. Therefore, employers may limit entry to the workplace to employees who have received a COVID-19 vaccination. Please bear in mind the recommendations mentioned in questions 7 and 8 above.

Last updated on 21/09/2021

Flag / Icon

Australia

  • at People + Culture Strategies

Unless a specific public health order allows an employer to impose such a condition on entry to its facilities (and these have been imposed by employers in certain sectors, including the aged-care sector), employers should avoid doing so as this could infringe anti-discrimination laws, and give rise to claims that an employee has suffered an adverse action.

Last updated on 21/09/2021

Flag / Icon

Austria

  • at Littler
  • at Littler
  • at Littler

In exercising his domiciliary rights, it is up to the employer or entrepreneur to decide which persons he allows to access company premises. Therefore, the employer must also be allowed to demand appropriate proof of vaccination. This action is also justified if vaccination reduces the risk of infection with covid-19 for other workers.

However, a separate question to ask is whether an unvaccinated employee is entitled to remuneration during a lockout. This assessment is to be made on a case-by-case basis. Since there is no legal basis for compulsory vaccination at present, a balance of interests must be made here. Many aspects play a role when balancing the interests of the employer and individual workers. For example, if there is a home-office agreement with a white-collar worker, the employer may link the return to work to changed conditions and therefore to proof of a covid-19 vaccination. In the case of blue-collar workers (or white-collar workers without a home-office agreement), however, a lockout with retention of salary will not be justifiable. The legislature currently provides three options to prove that there is no infection. A negative test result, proof of vaccination and a confirmation of a covid-19 recovery (3-G proof) are suitable ways of providing evidence here. Employers are not entitled to unilaterally impose stricter conditions without objective justification and will need to accept all three options. Furthermore, one must also consider the individual situation of the worker. Some workers are simply unable to have vaccinations for health reasons. Therefore, if employers opened their business only to vaccinated workers, they might also have to pay workers who have been locked out, without receiving any work performance.

This could change with the introduction of compulsory vaccination. First, the general vaccination obligation will drastically shift a possible balance of interests. Once compulsory vaccination comes into force, continued payment of wages for unvaccinated employees no longer seems necessary in most cases. However, there will be exceptions, especially for persons who cannot be vaccinated for medical reasons. In addition, workers will continue to be able to invoke the 3-G rule for the time being – until a corresponding change is made. If this regulation is not adapted, it will continue to be possible to rely on the alternatives to vaccination (testing, recovery).

Last updated on 31/01/2022

Flag / Icon

Belgium

  • at Van Olmen & Wynant

As stated above, the employer risks a violation of the GDPR and the Anti-discrimination Act.

In principle, the GDPR prohibits the processing of sensitive data regarding the health status of persons, unless there is a valid ground for such processing. As employees cannot freely give their explicit consent for this processing to their employer (as per their hierarchical relationship), such processing would require a legal basis, which does not exist. A violation of the GDPR could result in a fine by the Belgian Data Protection Authority (up to 20 million euros). The Belgian Data Protection Authority has confirmed that without a legal basis, it is not possible to process data on the vaccination of employees.

Next, such a condition could be seen as discrimination based on health status, according to the Anti-discrimination Act of 2007. However, a distinction based on health status can be justified by a legitimate aim and when the measures to reach this aim are appropriate and proportional. One could argue that the prevention of the spread of covid-19 is a legitimate aim and that an obligation to get vaccinated is appropriate. However, some would state that mandatory vaccination is not proportionate, as employers can take other measures (eg, social distancing, teleworking) to prevent the spread of the virus. At least Unia does not seem to believe that a mandatory vaccination can be justified. A discrimination claim could, for example, result in a damages claim (lump-sum compensation of three to six months’ salary). A legal basis for mandatory vaccination would take away this risk of discrimination.

The Federal Public Service of Work also notes that a mandatory vaccination would violate the Act of 22 August 2002 regarding patients’ rights. This Act provides for freedom of choice for all patients undergoing medical treatment.

Last updated on 21/09/2021

Flag / Icon

Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Considering by analogy the Supreme Federal Court’s decision on the possibility of federal, state and municipal authorities imposing restrictive measures for citizens who refuse vaccination and health and safety rules in the workplace, we understand that there may be grounds to defend a policy allowing only employees who have been vaccinated to access the office, as long as those who are not vaccinated can still work from home without major consequences (such as termination). That being said, the main risk would be having those employees who have not received a covid-19 vaccination argue that they have been discriminated against and claim for an award of damages for pain and suffering – especially if they are subject to discipline (including termination).

Last updated on 21/09/2021

Flag / Icon

France

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

For employees for whom vaccination is not mandatory, employers cannot make entry to the workplace conditional on vaccination, nor can they threaten to dismiss the employee if they have not had the vaccine.

If an employer makes the return to the company premises conditional on vaccination, they are violating the employees’ privacy and medical confidentiality, and employees may freely refuse it. In case of dismissal, it could be judged null and void since it may violate the employee's privacy and medical secrecy.

On the other hand, for employees working in the above-mentioned establishments (bars, restaurants, department stores, shopping centres etc.), the employer may make the return of the employee to work conditional on the presentation of a health pass (either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following a covid-19 contamination).

Finally, for health professionals, there will be no risk for the employer. The employer will be able to condition the return to the premises on proof of vaccination status.

Last updated on 21/09/2021

Flag / Icon

Germany

  • at CMS Hasche Sigle

Under current law, employers may not – apart from the health care and nursing sector – make employment conditional on employees being vaccinated. If an employer refuses an employee access to the workplace, the employee is not only entitled to continued payment of salary but can also enforce his or her right to employment (ie, through an interim injunction to compel the employer to grant access to the workplace and to provide employment). In addition, there is a risk for the employer that the demand for vaccination will be assessed as discrimination, at least in the case of employees who cannot or do not want to be vaccinated because of pregnancy, disability or for religious reasons.

Based on the new temporary amendments to the Infection Protection Act, a “3G” rule applies in the workplace: employees will only be allowed to get access to their workplace inside company’s premises if they have been vaccinated, have recovered from covid-19 or have been tested (with a negative result) not more than 24 hours before the time entering their workplace. Employers must check whether employees comply with this obligation and keep a record. Employees of nursing and care facilities must regularly submit a negative test even if they have been vaccinated or have recovered.

Last updated on 14/04/2022

Flag / Icon

Greece

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

See question 7 regarding vaccination and entering the workplace.

Given that covid-19 vaccination is not mandatory (with some exceptions for employees working in nursing homes, hospitals etc), making entry subject to having received a covid-19 vaccination is not lawful and gives employees grounds to raise a discriminatory claim against their employer.

Last updated on 21/09/2021

Flag / Icon

Hong Kong

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

If an employer were to implement this condition, there may be employment law and data privacy issues.

The potential data privacy issues are set out in response to question 11 below.

From an employment law perspective, unless an employee’s workplace is subject to vaccine pass rules (see our response to Question 8 above for further details), the current position is that making entry to the workplace conditional on having a covid-19 vaccination may constitute a breach of contract or an unreasonable variation of employment terms, unless it was consented to by the employee or it amounts to a lawful and reasonable direction. If an employee is dismissed as a result of not being able to enter the workplace (eg, they were unable to carry out their full job duties without being in the workplace and were therefore made redundant), this individual could challenge the reasonableness of their dismissal if they have two or more years’ service. (However, as mentioned in our response to Question 8 above, after the Amendment comes into force, an employer could make entry to the workplace conditional on an employee having received a covid-19 vaccination by making a “legitimate vaccination request”, and the employee’s failure to comply with the request could be a valid reason for dismissal.)

Employees protected by Hong Kong’s anti-discrimination ordinances may also be able to bring claims against their employers if the condition is disadvantageous to them as a group and the individual is also personally affected. For example, if an individual who is pregnant or breastfeeding decides not to receive a covid-19 vaccination because of recommendations from their doctor regarding their baby’s health, and they are refused entry to the workplace, they may claim indirect sex discrimination on the basis that while the condition applies to the entire workforce, it is more disadvantageous to those who are pregnant or breastfeeding as they are less likely to be vaccinated and, in turn, it has disadvantaged her personally. Regarding this individual’s losses, this may be limited to injury to feelings but could also lead to financial loss if this individual missed out on opportunities as a result of not being able to enter the workplace or was dismissed.

Notwithstanding the above, the government has recently required that all civil servants must receive two covid-19 vaccine doses by 1 April 2022, or they will be banned from government premises (unless they hold a medical exemption). Further, with the introduction of the vaccine pass rules (please refer to our response to Question 8 above to further details), employees who are unvaccinated would in any event be banned from entering their workplace if their workplace is subject to vaccine pass rules.

Last updated on 06/04/2022

Flag / Icon

India

  • at Nishith Desai
  • at Nishith Desai

The employer has a right to restrict the entry of any employee to its office premises if the employee is not vaccinated. In such a case, the employee may continue to work remotely.

Last updated on 18/11/2021

Flag / Icon
Ireland

Ireland

  • at Littler

Where employers can objectively justify restricting access on that basis (e.g. to maintain a safe working environment), the risk of such a restriction being successfully challenged is limited. However, the processing of this data may be problematic from a data protection perspective.

In any event, it does not confer any particular advantage to adopt this approach given that the current official guidance is that normal workplace “covid-secure” measures (eg., mask-wearing and social distancing) will remain applicable for all employees, irrespective of vaccination status.

Last updated on 13/01/2022

Flag / Icon

Italy

  • at Toffoletto De Luca Tamajo

As mentioned above, the company’s occupational doctor can lawfully consider the Covid-19 vaccination as a necessary requirement for entering the workplace. Should employers impose this measure without the intervention of its occupational doctor and prohibit unvaccinated employees from entering the company and work, it may give rise to claims against the employer for demotion and damages.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

Flag / Icon

Mexico

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

Entry to the workplace could be conditioned on receiving a Covid-19 vaccination as a health and safety measure to prevent the spread of the virus. However, since vaccination is not mandatory, employees who have decided not to get vaccinated have the right to remain active and continue providing services at the employer’s premises or remotely without changes to their employment conditions.

Last updated on 21/09/2021

Flag / Icon

Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Under current law, employers may not make entry to the workplace conditional on employees having received a covid-19 vaccination. If an employer refuses an employee access to the workplace, the employee is not only entitled to continued payment of salary but can also enforce his right to employment in court. In addition, refusing entry for unvaccinated employees could be considered as discrimination and a violation of privacy legislation.

More information can be found here

Last updated on 08/03/2022

Flag / Icon

Poland

  • at Bird & Bird
  • at Bird & Bird

A general prohibition against non-vaccinated employees coming to their employer’s premises (when the premises are not closed to everyone) is risky. Vaccination itself is not a reason to differentiate between employees if this is not objectively justified. Categorising employees based on their vaccination status could be considered a form of discrimination. The Labour Inspectorate could impose a fine for a violation of employees’ rights. An employee could file a claim of discrimination against the employer, demanding compensation.

Last updated on 21/03/2022

Flag / Icon

Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Employers cannot require employees to provide information regarding their health – namely but not exclusively regarding their vaccination – except when it is strictly necessary and relevant to assess their suitability for work and the stated purpose is provided in writing to employees. Please note that even in such cases, health data would be provided to the occupational doctor – ie, not directly to the employer – who in turn can only communicate to the company an employee's fitness to perform their role.

Therefore, it is unlawful to make entry to the workplace conditional on employees having an optional vaccine such as covid-19, both from a labour and a data protection perspective. Such behaviour can be deemed a very serious breach of labour laws, leading to penalties, orders to cease such conduct, and damages under general civil law principles.

Last updated on 21/09/2021

Flag / Icon

Qatar

  • at Clyde & Co
  • at Clyde & Co

Implementing a mandatory vaccination policy poses a conflict between an employer’s obligations concerning the health and safety of its employees versus an employee’s right to choose whether or not to be vaccinated. Vaccination cannot be mandated; however, employers can state that access to the workplace will only be granted to those who are vaccinated. Imposing a requirement to take the covid-19 vaccination would require the employee’s consent. In such instances, consideration should be given as to the rationale and employee concerns, as well as whether employees perform a role that can be undertaken from home. The employer should also ensure that any vaccination policy allows for exceptions relating to pregnancy or other issues which may mean vaccination is not appropriate.

Last updated on 08/11/2021

Flag / Icon

Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

There is a minimal risk, given that a mandatory vaccination policy has been enforced by the KSA Government (see question 8).

Last updated on 29/11/2021

Flag / Icon

Spain

  • at Cuatrecasas
  • at Cuatrecasas

The employer may face administrative fines for breaching obligations on labour law and personal data:

  • by hiring only vaccinated individuals, the employer’s decision could be considered discrimination against individuals who decide not to get the vaccine; and
  • by asking job applicants whether they are vaccinated, the employer could breach the regulations on personal data. As this is data concerning health, it is a special category of personal data under the GDPR, and its processing is prohibited except in specific cases, which would not apply in this case.

Any of these actions is a very serious breach, leading to labour-related administrative fines ranging from €6,251 to €187,515 (as of 1 October 2021, from €7,501 to €225,018). Additionally, the employer may face administrative fines for breaching the GDPR.

Last updated on 21/09/2021

Flag / Icon

Sweden

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

Requiring employees to be vaccinated in the office may render discrimination claims from employees unable or unwilling to take the vaccine due to characteristics protected in the Swedish Discrimination Act. As mentioned above, an employer cannot compel an employee to get vaccinated. However, the employer must take all necessary measures to avoid risks of injury or ill health at work according to the Work Environment Act. If no other measures than a vaccine are available to ensure a safe environment (where other protective measures such as face masks, safe distancing or similar are deemed inadequate), it could be argued that it is justifiable to ask employees to be vaccinated to work from the office or continue homeworking until the rate of infection has gone down, if this is necessary and proportionate to ensure a safe working environment.

Last updated on 21/09/2021

Flag / Icon

Switzerland

  • at Lenz & Staehelin

Except in the abovementioned exceptional cases, employers prohibiting unvaccinated employees from working would be obliged to pay these employees their full salary, even though they did not perform their work.

Employers who have opted to implement measures requiring employees to present a covid certificate should use the Covid Certificate Check application to verify whether employees have a valid covid certificate. The Federal Data Protection and Information Commissioner (FDPIC) has said that employers should avoid keeping a list of employees with a valid covid certificate, or otherwise storing such data, as the employer could be considered to be processing sensitive personal data and thus subject to the rules set forth in the Swiss Data Protection Act (DPA). 

Further, the covid certificate can be presented for verification by the Covid Certificate Check application in either its original version or the "light version". With the original version, it is possible to see whether the employee was vaccinated, recovered from covid or received a test; the "light version" only shows whether the employee has a valid covid certificate. The FDPIC recommends the use of the "light version" in workplaces, as less personal data is visible.

Moreover, this information may not be used for purposes other than determining appropriate workplace protective measures and implementing a testing plan.

Last updated on 20/01/2022

Flag / Icon

Turkey

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

As mentioned above, employers are under an obligation to protect their employees. This means that employers should consider the health of employees working at physical premises. On the other hand, as explained above, employers cannot force employees to get vaccinated, and making entry to the workplace conditional on an individual worker receiving a covid-19 vaccination may be construed as pressure by the labour courts.

Please see question 10 regarding the option of requesting mandatory PCR testing.

Last updated on 09/02/2022

Flag / Icon

UAE

  • at Clyde & Co
  • at Clyde & Co

Implementing a mandatory vaccination policy poses a conflict between an employer’s obligations concerning the health and safety of its employees versus an employee’s right to choose whether or not to be vaccinated. Vaccination cannot be mandated; however, employers can state that access to the workplace will only be granted to those who are vaccinated. Requiring a covid-19 vaccination would require the employee’s consent. In such instances, consideration should be given as to the rationale and employee concerns, as well as whether employees perform a role that can be undertaken from home. The employer should also ensure that any vaccination policy allows for exceptions relating to pregnancy or other issues that may mean vaccination is not appropriate.

Last updated on 08/11/2021

Flag / Icon

United Kingdom

  • at Littler

As indicated above in response to question 8, the position has not yet been tested before the UK’s courts and tribunals and remains the subject of vigorous public debate.

Many commentators have highlighted the potential risks of unfair dismissal and discrimination claims by employees against employers, as well as data privacy issues, if employers make entry to a workplace subject to vaccination. These issues are discussed below.

Insisting on vaccination as a requirement to return to a physical work location may lead to the following employment law risks:

  • if an employee believes the requirement is an unreasonable demand, it can trigger them bringing a “constructive” unfair dismissal claim if they refuse to comply with it and resign in protest, or an “ordinary” unfair dismissal claim if they refuse and are dismissed. As there has been no judicial consideration of this issue, we do not currently know in what circumstances such a requirement would be deemed unreasonable; and
  • if the requirement is a blanket requirement without exceptions, it can give rise to potential discrimination claims, the most obvious of which are as follows:
    • if the employer does not make reasonable adjustments for staff with health issues who cannot be vaccinated, it could trigger a potential disability discrimination claim;
       
    • if a staff member cannot comply with the requirement because of a religious or similar belief, it may give rise to an indirect discrimination claim for this reason; and
       
    • similarly, a blanket requirement could indirectly discriminate against younger staff as, at the time of writing, not all over 18s will have been offered both vaccinations. In this context, it should be kept in mind that the general position is that the UK’s age discrimination legislation does not just protect older workers or workers over a particular age (such as workers aged at least 40) but can extend to all age groups. The particular issue with younger staff and vaccines should improve by the end of September 2021 when the government has said that all adults will have been offered both doses. Employers can consider making adjustments to the policy (such as allowing regular testing instead of double vaccinations).

Assuming there is no specific legislation enabling an employer to do this, the risks of making entry to the workplace conditional on individual vaccination may be mitigated somewhat if:

  • there is a specific and strong justification for the requirement, rather than just a generic desire on the part of the employer, that other COVID-safe working practices cannot achieve. This justification should be supported by the outcome of a properly considered risk assessment;
  • steps are taken to mitigate the impact on employees who cannot, for health reasons, comply with the requirement; and
  • there is an alternative working arrangement available to those who do not, or cannot, comply with the requirement (such as continuing to work from home).

Where employers can objectively justify restricting access on the above basis, the risk of such a restriction being successfully challenged by an employee will be reduced. However, it must be emphasised that this issue remains wholly untested in the UK judicial system.

Some employers in the UK are introducing a hybrid vaccination or recent negative test (PCR or lateral flow/rapid antigen) requirement for entry into the workplace. By providing an alternative to vaccination, this approach may reduce the risk of claims for unfair dismissal or discrimination. It does not lessen the data protection issues and employers should ensure they are complying with their data protection obligations. As with a vaccination-only policy such a hybrid policy is wholly untested in the UK judicial system.

There is a further, ancillary issue, relating to data protection. The ICO has issued guidance essentially to the effect that although employers may undertake spot-checks of employee vaccination status, in most cases it is far less likely to be justifiable for employers to retain a record of any employee’s vaccination status: see question 11 below, and also see here.  

Last updated on 13/01/2022

Flag / Icon

United States

  • at Littler
  • at Littler
  • at Littler

While 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 through alternative measures. Those can include getting tested weekly or working remotely.  In addition, state law is rapidly evolving in this area and we have seen a steady increase in worker lawsuits that are filed on the basis that treating unvaccinated people differently is discriminatory or unlawful. 

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