[co-authors: Nohid Nooreyezdan*, Bhuvana Veeraragavan*, Vinay Vaish**]
WLG asked 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. Responses for India have been updated with new questions since its initial publication in January. (View responses from other countries here.)
Can an employer compel compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
The Ministry of Health and Family Welfare has recently issued FAQs clarifying that vaccination for Covid-19 is voluntary. Accordingly, an employer cannot require compulsory COVID-19 vaccination for its employees.
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, an employee is well within his/her right to refuse to be vaccinated. Despite that, employers should set up a strict protocol to be followed by the employees as a safety measure, like sanitization, social distancing, hand washing, temperature check, etc. at the workplace, the protocols must be in line with what is specified by the Government authorities.
In the event of a refusal can an employee be dismissed for refusal to comply with such a vaccination policy - will that constitute just cause for termination?
No, an employee cannot be terminated merely for his refusal to comply with the employer’s vaccination policy. Nor will the refusal constitute a just cause. However, one has to also see the industry/ area of business or activity in which the employee is working and the specific circumstances.
What benefits or accommodations do employers have to make for vaccinated employees?
In India, currently it is at the discretion of the employers to provide any benefits or make any accommodations for employees who decide to opt for the vaccination. That said, in order to incentivize employees to get vaccinated when they are able to in accordance with the Government’s policy, several companies are either covering the vaccination cost for their eligible employees, or partnering with health care service providers to ensure a smooth process of vaccination.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
No. Given that the vaccination is voluntary, a vaccinated employee cannot refuse to work with employees who are not vaccinated. Needless to say, an employee may certainly raise a concern if a coworker is found to be suffering from symptoms suggestive of COVID, or in situations where adequate social distancing measures and safety protocols are not undertaken at the workplace by the employer in accordance with the SOP issued by the Ministry of Health and Family Welfare.
In your country, are employers required to provide paid leave for employees to get vaccinated?
No separate leave for vaccination has been prescribed under the currently applicable guidelines. Accordingly, granting of such leave is completely at the employer’s discretion.
*AZB & Partners