[author: Ivor McGettigan]*
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. Responses from the UAE.
Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
No. To date, the UAE government has not made any announcement making it mandatory for the citizens and residents of UAE to be vaccinated. Therefore, an employer may not mandate vaccination for its employees currently. However, it is worth noting the provisions of Federal Law No. (27) of 1981 Concerning Communicable Disease Prevention ("the Prevention of Communicable Disease Law"), and Cabinet Resolution No. (17) of 2020 Regulating the Violations of Precautionary Measures and Instructions and Duties Imposed to Curb the Spread of Novel Coronavirus ("the Cabinet Resolution") are applicable.
Article 22 (1) of the Prevention of Communicable Disease Law, states: "...the Ministry may issue an announcement to be published in the Official Gazette and other media, specifying the infected area and compelling any person in the area to receive mandatory vaccination and immunisation for the prevention of the disease.” Article 1 (1) of the Cabinet Resolution, states: “A natural or legal person shall not violate the precautionary and preventive measures and instructions and duties regarding health and safety preservation in order to control the risk of spread of Covid-19". If vaccination does become mandatory in the future, the remit of any new laws would have to be reviewed, before advising on the labour law implications. Separately, for information, note that on 5 January 2021, the Federal Authority for Human Resources ("FAHR") released a circular which provides that all UAE government public sector employees, effective from 24 January 2021, must perform PCR tests every 7 days at their own expense even if they are vaccinated. Exempted employees include those who can prove that they are ineligible to take the vaccine.
FAHR issued Circular No.3 of 2021 which is relevant to the public sector. Nevertheless, this might be of relevance to any individual/private company who is required to attend public sector premises. The following will apply:
- Employees of outsourcing, public services, companies etc. contracted by federal government entities, must conduct PCR tests for their employees who are or will be present on a daily basis at the entity's workplace, every 7 days, at the expense of those contracted companies, with the exception of employees who have received the two doses of COVID-19 vaccine.
Employees of consulting firms, think tanks, etc. in the event of contracting with these companies by the federal entities, and if their employees are required to visit the federal entity's workplace, must have a PCR result valid for no more than 3 days if not vaccinated and if vaccinated must be able to show “E” on the AlHosn Application
The Abu Dhabi Department of Economic Development (“ADDED”) issued Circular No. 12 of 2021 stating that employees in the private sector in Abu Dhabi are now expected to obtain PCR tests once every two weeks, in order to enter their employer’s registered workplace. Additionally, there is no exemption for individuals who have been vaccinated or who are unable to get vaccinated; in other words, the requirement to get tested now extends to all employees, regardless of vaccination status or underlying health conditions. Please note that the PCR test is provided free of charge in certain hospitals/centres. Failure to comply with these new regulations is punishable by a fine of AED 50,000 for the employer and AED 5,000 for the employee.
Note that the above ADDED rule is not applicable to employees based in Dubai (who are not currently required to undergo PCR testing every two weeks in order to attend the office), although employers may require regular PCR testing to ensure a safe work environment.
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?
Employees can refuse to be vaccinated and employers have limited options in this regard, as vaccination is not currently mandated (although legal powers have been put in place to be triggered should the government deem it necessary to mandate mass vaccination of the population – see above at question 1). We do not recommend that employers introduce a contractual requirement for vaccination as employees have the option to refuse it. We do not recommend employers bring disciplinary proceedings against employees that refuse vaccination as they may bring a claim under the applicable local labour law (noting that there are different jurisdictions within the UAE, which each have their own applicable employment laws and regulations).
It is also worth mentioning that the capacity in the offices in Abu Dhabi’s private companies is 60%.
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?
As mentioned above, we do not recommend any disciplinary proceedings or recommend termination of employees in the event of a refusal. The employee’s refusal will not constitute just cause for termination as it is not mandated by law and in order to terminate an employee under Article 117 of the UAE Labour Law (for example), an employer may terminate an employee with notice as per their contract (minimum of 30 days’ notice and maximum 3 months’ notice) for a “valid reason”. While the term “valid reason” is not defined under the law, any reason must be work-related for example, poor performance, after having followed the minimum statutory disciplinary process. In the event the employer decides to terminate the employee for refusing to vaccinate, then the employee may bring a claim under the UAE Labour Law and may be awarded up to 3 months’ compensation for arbitrary dismissal.
What benefits or accommodations do employers have to make for vaccinated employees?
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
In your country, are employers required to provide paid leave for employees to get vaccinated?
No, not by law, however, employers can decide on their own policies in this regard. Employees can be encouraged to take the vaccine in their spare time or on weekends, to limit disruption to work, to the extent possible.
*Al Tamimi & Company