Introduction

COVID-19 vaccination campaigns are underway throughout Europe. Vaccines are a game-changer in the ongoing battle against COVID-19, and effective vaccination campaigns should accelerate the ability of governments to relax infection-control measures in EU Member States and the UK. Against this backdrop, the following FAQs provide guidance on a number of the pressing questions employers across Europe are asking regarding the impact of vaccination on their workplace and workforce.

Are there EU Commission or UK government legislation or guidelines concerning vaccination?

To date, the EU Parliament and Member States have reached a provisional agreement concerning the implementation of a "Digital COVID Certificate" (EUDCC). This certificate aims to facilitate safe, free movement within the EU during the pandemic. It would identify those who are vaccinated, those who have recovered from COVID-19, and those who have tested negative for COVID-19. Its exact terms and conditions are still under discussion and EUDCC should not enter into force before next July 1.

The EU Commission also has confirmed its commitment to nondiscrimination between vaccinated and unvaccinated people as well as its voluntary approach to vaccination throughout EU member States.

Similarly, the UK government has not created a platform for mandatory vaccinations, although it is being debated in the healthcare and social care sectors. The UK plans to issue vaccine certification through a National Health Service app to facilitate foreign travel.

Can employers mandate vaccination?

In the absence of government-mandated vaccination, EU member states and the UK are highly unlikely to permit employers to mandate vaccination for their employees. While EU and UK employers have a general obligation to ensure a safe workplace, this obligation likely does not outweigh an employee's freedom to choose whether to be vaccinated. Instead, the focus for employers should remain on their legal obligations to minimize the risk of exposure to COVID-19 in the workplace. Indeed, mandating the use of personal protective equipment and enforcing social distancing practices in the workplace have proven to be effective tools to limit the spread of COVID-19.

Can employers offer vaccination in the workplace?

Most EU member States encourage employers to offer vaccines in the workplace and some have implemented specific guidelines and protocols to facilitate workplace vaccination clinics. The UK's and Dutch vaccine programs continue to be run exclusively by the national health services.

EU employers that offer vaccination in the workplace must do so in a safe environment. To meet this obligation, they should consider how best:

• To adapt their premises to facilitate a safe and efficient vaccination clinic, including by providing a dedicated space that ideally is separated from employee work areas;
• To receive and store vaccines for use;
• To manage vaccine waste, including syringes, to avoid contamination risk;
• To ensure medical confidentiality.

In practice, local employee representatives, doctors, and nurses should be closely involved in preparing and facilitating workplace vaccination clinics.

Can employers be held liable for injuries sustained as a result of vaccination in the workplace?

As vaccination is voluntary in Europe and generally administered by third parties (doctors, nurses, etc.), it seems unlikely employers would be held liable for vaccine-related injuries in most circumstances. The risk of liability increases, however, for employers that do not outsource health and safety procedures in connection with a workplace vaccination clinic (e.g., vaccine storage, waste disposal, etc.) or who are involved in communications with employees/patients during such clinics.

Given the special nature of the employer-employee relationship, waivers obtained from employees are unlikely to be legally binding or effectively minimize potential liability.

Can employers treat vaccinated and unvaccinated employees differently?

Differentiating between employees based upon vaccination status may be a violation of nondiscrimination principles applicable in all EU member States, especially considering that:

• Employees in all EU member states are free to decide whether to get vaccinated;
• The decision whether to get vaccinated is a private decision that shall not have consequences for the employment relationship; and
• Vaccinations are not yet available to the entire population in most EU member States.

Employers also should recognize that certain employees may not get vaccinated for health reasons or due to sincerely held religious beliefs. Treating vaccinated individuals more favorably also may lead to indirect race discrimination because certain ethnic groups have proven statistically less likely to get vaccinated than others.

Employers also should pay particular attention to stigmas or mistreatment of employees due to their view on vaccines (whether for or against) and take steps to prevent discrimination, harassment, or intimidation of employees in the workplace.

What if vaccinated employees refuse to work alongside unvaccinated employees?

Being in the presence of unvaccinated colleagues would not be a valid reason to refuse to work, provided the employer has complied with COVID-19-related health and safety measures designed to keep the workplace safe. Most EU employers have a general obligation to provide a safe workplace. In a COVID-19 environment, this often means providing protective equipment (i.e., masks, gloves, hand sanitizer, etc.) and enforcing social distancing measures.

In France, Germany, and Spain, for instance, employers have a binding obligation to provide a safe workplace, and the Labor Ministry in each country has issued requirements and guidelines to minimize COVID-19 exposure in the workplace. Also, see our recent Jones Day Alerts regarding policies in Italy: "Italian Data Protection Authority Issues Guidelines on Data Processing Relating to Employees' COVID-19 Vaccinations at the Workplace," and "Italian Employers Now Allowed to Organize COVID-19 Vaccination Clinics in the Workplace."

Are there data protection or privacy issues to take into consideration with respect to vaccination?

Employees' vaccination status is considered health data under the General Data Protection Regulation ("GDPR"), i.e., a special category of personal data that can be collected and processed to a very limited extent, provided there is a specific legitimate need to do so. In practice, this means that employers should not ask employees indiscriminately to disclose this information, but only to the extent it is necessary and proportionate to do so. For instance, asking employees who only work remotely or who are otherwise unlikely to come into contact with other employees, customers, or suppliers is not likely reasonable or proportionate from a GDPR standpoint.

Collecting such data also may be deemed as having a potentially discriminatory purpose, that is, enabling an employer to treat vaccinated and unvaccinated employees differently.