[author: Outi Tähtinen]*
We asked our member firms around the globe to provide some insight on employer and employee rights when it comes to requiring the COVID-19 vaccine to return to work. Updated responses for Finland below.
Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider? No, it is not possible for an employer to require COVID-19 vaccination from its employees. In Finland, the Finnish Government has issued a decree on the rollout of COVID-19 vaccinations. According to the decree, vaccination is voluntary for everyone. This also includes employees in the health care sector, where, in certain circumstances, the employer can require employees and job applicants to have received certain vaccinations.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights? Yes. Although the employer can encourage its employees to get the COVID-19 vaccination (by for example allowing employees to get vaccinated during working hours), the employees have a full right to refuse. Also, due to rather strict privacy protection of the employees and the job applicants, the employer is not even entitled to request the employee or the job applicant to provide any COVID-19 vaccination information.
Employers should focus on other measures in providing a safe work environment for employees. A safer work environment may be achieved through remote work, social distance, face masks and good (hand) hygiene. The workplace safety and employees’ health must be continuously assessed.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination? No. Since taking the COVID-19 vaccine is voluntary for everyone in Finland, an employee cannot be dismissed for refusing to get vaccinated. Also, no other disciplinary measures can be taken towards an employee.
If, however, the employer would choose to dismiss the employee based on the refusal to get vaccinated, this would most likely be considered as an illegal action. Termination of employment without legal grounds can lead to an obligation to pay compensation to the employee, equal to between three and 24 months' salary. If the employee is holding a position of an employee representative, the maximum compensation is 30 months’ salary.
What benefits or accommodations do employers have to make for vaccinated employees? N/A. All employees must be treated equally despite their voluntary vaccination status.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated? In general, no. Non-vaccinated employees do not necessarily cause more health risks at workplace compared to vaccinated employees. Also, due to rather strict privacy rules, information on employees’ COVID-19 vaccination status cannot be freely handled.
In your country, are employers required to provide paid leave for employees to get vaccinated? According to the Finnish Communicable Diseases Act (1227/2016) an employee has the right to receive a voluntary vaccination (like COVID-19) during working hours, if the vaccination cannot be organized outside the working hours without difficulty. The part of an employee's daily regular working hours used for the said purpose is considered as working time. If the employee is entitled to use the regular working hours to get vaccinated, it can be argued that this time is considered as a paid leave. However, the issue is not 100 % clear and contrary opinions have been presented by some employer associations, i.e. that the leave would be unpaid. The question may not be so relevant in Finland as COVID-19 vaccinations are organized also during the evenings and weekends, and therefore the employees should be able to schedule the vaccinations also outside their working hours.
*Castrén & Snellman