Jones Day

In Short

The Situation: With COVID-19 vaccination campaigns underway throughout Europe, employers are now evaluating how the availability of vaccines may impact their own workforce, including whether they can make vaccination mandatory, inquire or request proof of employee vaccination status, incentivize the workforce to get vaccinated, and/or engage in campaigns to educate the workforce about COVID-19 vaccines.

The Result: While vaccination is currently voluntary throughout Europe, employers' legal ability to require proof of vaccination, incentivize vaccinations in their workforce, and take other actions related to employee vaccinations varies by country. European employers generally are permitted to encourage vaccination and provide workforce education on vaccinations to their workforces.

Looking Ahead: Further European legal developments on vaccinations are expected, which may offer employers more latitude to take action on vaccination with respect to their workforces. The European Commission is currently working on a proposal for a coordinated pan-European approach for the use of (digital) vaccine certificates.

Introduction

Three COVID-19 vaccines are already authorized in the 30 EEA Member States and in the United Kingdom, and a few more are currently being evaluated. This offers employers some hope that workplaces may return to something resembling the pre-pandemic environment in the foreseeable future. With vaccination campaigns up and running throughout Europe, many employers in the E.U. and U.K. are now questioning what actions they can take to keep their workplaces as safe as possible, including by making vaccination mandatory, inquiring or requesting proof of vaccination status, incentivizing the workforce to get vaccinated, and/or engaging in campaigns to educate their workforces about COVID-19 vaccines.

This Commentary sets forth the current state of the law and expected legal developments around workplace-related vaccination issues in Belgium, France, Germany, Italy, the Netherlands, Spain, and the U.K. Given the risks of legal violations and the speed of new legal developments in this area, we recommend employers consult with their local counsel in determining the most effective legal means of providing a workplace safe from COVID-19, including in connection with vaccination policies (if allowed by local laws) and before seeking information about employee vaccination status, encouraging employee vaccinations, or providing educational materials to employees.

Belgian Employers are Encouraged to Create Awareness and Opportunities for Voluntary Vaccination

  • In Belgium, the Employment Act requires employers to implement general workplace health and safety measures. However, according to the Belgian Data Protection Authority, this obligation does not overrule GDPR protections regarding the processing of health-related data and does not provide authority for employers to require workers to get vaccinated or inquire of their vaccination status.
  • The Belgian Codex on well-being at work was amended in November 2020 to include the novel coronavirus (SARS-CoV-2) in the list of elements that require special protection for employees in certain industries (e.g., health care institutions, prisons, food industry, etc.). But even here, employers are not allowed to ask their workers to provide proof of vaccination.
  • Consequently, based on the current state of Belgian law, employers cannot process data concerning employee vaccination or mandate employee vaccinations. Moreover, any differential treatment based upon an employee's vaccination status is prohibited. Affected employees could file claims based either on discrimination (with potential damages equal to six months of salary) or unfair dismissal (with potential damages between three and 17 weeks of salary).
  • Belgian employers are permitted to create opportunities for employees to get vaccinated, including by organizing a voluntary workplace vaccination clinic (like, for example, an annual influenza vaccine clinic) and/or allowing employees to get vaccinated during working time.
  • One Belgian legal development of note is a proposal to grant paid vaccine leave to workers (i.e., paid time off for employees to get vaccinated).

French Employers Are Expected to Play Major Role in Fighting the COVID-19 Pandemic

  • Currently, vaccination is permitted only for priority populations designated by the French government, though it likely will evolve to permit widespread vaccination for those who want it. Except for people living in specialized residences and health care professionals, individuals eligible for vaccination must schedule an appointment at a vaccination centre.
  • In France, vaccination is compulsory only when provided for by law. The list of mandatory vaccines is restrictive and currently does not include vaccination against COVID-19.
  • Consequently, although French employers have a duty to protect the health and safety of their workforce, employers cannot mandate vaccination against COVID-19 or require proof of vaccination from their employees. The French Labor Ministry confirmed these principles in December 2020.
  • The French Labor Code permits employers to recommend that employees exposed to certain biological risks (including the COVID-19 virus) be vaccinated. Further, employers may educate their employees of the risks of contracting COVID-19. Also, they may carry out an incentive campaign in consultation with the occupational health services.
  • Going forward, the French Labor Minister indicated on January 5, 2021, that rules are likely to change rapidly. Companies that operate in France are an integral part of the national strategy to fight the pandemic and may, in due course, play a larger role in the country's vaccination campaign.

In Germany a Legal Obligation to Get Vaccinated is Not Expected

  • In Germany, mandatory vaccination is considered to be a violation of the individual's constitutional right of physical integrity. In the absence of a legal duty to be vaccinated, vaccination requires individual consent. Therefore, an employer cannot require its employees to be vaccinated.
  • Under normal circumstances, there is no legal basis to request proof of vaccination from employees. More extreme circumstances may call for limited exceptions, on the basis of a reasonably executed balance of interests, such as a need for entrance controls (e.g., if several employees became infected onsite).
  • Depending on the type of business and size of operation, offering voluntary vaccinations can be part of the employer's preventive medical care measures. This requires careful organization of the vaccination process regarding, for example, the involvement of a doctor, the wording of the invitation, and the procedural steps for preventing claims against the employing entity if anything goes wrong in the vaccination procedure.
  • In the current political environment, it is unlikely that mandatory vaccination will become law. Moreover, any law mandating vaccination likely would be limited to certain high-risk individuals (e.g., those working with dangerous material or in a particularly risky environment).

In Italy, Vaccination is Voluntary, but the Debate on Safety at Work is Intensifying

  • Currently, only individuals in the following priority groups are eligible to receive COVID-19 vaccines: (i) doctors and other medical personnel; (ii) personnel working in retirement homes; and (iii) seniors age 80 or older.
  • Vaccination against COVID-19 is not mandatory in Italy. Although employers are required to take all necessary measures to protect the health of workers, the Italian Constitution prohibits mandatory medical treatment, except by virtue of law. Currently, no such law exists.
  • Consequently, employers cannot mandate that employees get vaccinated for COVID-19 at present. In the absence of a law permitting mandatory vaccination for employees, employers should consider other viable alternatives to keep the workplace safe (e.g., telework, protective measures, etc.) to avoid being exposed to possible liabilities (e.g., data protection as it is questionable if the employer is entitled to know which employees got vaccinated; negative reaction of employees to the vaccine; etc.). Employers should consider educating their employees about the vaccine upon request, with the support of the company's doctor. However, the public health system manages administration of the vaccine, so offering incentives to get vaccinated or setting up a vaccine clinic at the workplace are currently not viable options in Italy.
  • A legal obligation for an employer to vaccinate employees seems unlikely, at least in the near future. To the extent any legal obligation arises, it likely would apply only to specific categories of employees.

No Compulsory Vaccination by Employer in the Netherlands, but More Leeway to Work with Vaccination Certificates Expected

  • Currently, vaccines are being distributed by the Dutch government in collaboration with the Joint Health Service and general practitioners. Employees working in health care and certain priority populations (e.g., senior citizens and people with medical conditions) are vaccinated first. Once the vaccine is available for the general population, individuals could schedule an appointment at a vaccination centre.
  • Dutch law does not permit employers to set up their own vaccination programs or mandate employee vaccinations. Further, employers cannot treat employees differently on the basis of their vaccination status.
  • Employers are allowed to educate employees on vaccinations, create awareness of the COVID-19 vaccine, and promote vaccinations. Employees who can only be vaccinated during regular working hours are entitled to paid time off.
  • It is unclear whether employers can require employees to provide proof of vaccination (i.e., show a "vaccination certificate") in certain circumstances. Recently, the Health Council of the Netherlands advised the Dutch government that Dutch law does offer employers some room to request a vaccination certificate when granting access to work locations, provided that the employer can substantiate its need for the certificate and observes certain strict conditions. Dutch government officials replied that the government (i) will study the conclusions of the Health Council, which could result in additional legislation or guidelines, and (ii) work on an app to facilitate communication of negative test result, which could speed up return-to-workplace programs. Although the Health Council's advice is not legally binding, it has generated further debate and developments on this issue.

Spain Awaits Specific Case Since There is No Legal Exception to Voluntary Approach

  • In Spain, government authorities have confirmed the official approach calls for voluntary vaccination of the population. Notably, however, the Spanish National Vaccination Strategy has emphasized that "it is important to record cases of refusal of vaccination in the (National) Vaccination Register, with the purpose of finding out the possible reasons for reticence in different population groups."
  • Employers cannot take adverse employment actions (i.e., warnings, dismissals, etc.) or otherwise discriminate against employees that refuse to be vaccinated. Otherwise, the adverse action likely would be a breach of the employee's Fundamental Rights and could potentially result in fines. Positive incentives (i.e., vaccination bonus) may be appropriate or, instead, may be discriminatory depending on the circumstances.
  • In taking actions involving health and safety in the workplace, employers must pay special attention to potential information and consultation duties toward Works councils and Unions, as well as health data privacy implications.
  • While no legal exception to the voluntary approach to vaccination is likely in the foreseeable future, a case-by-case analysis may be needed. For example, it is debatable whether employees working in industries with a high risk of infection (e.g., health care and nursing home professionals) could be compelled to take the COVID-19 vaccine.

No Intention in United Kingdom to Change the Law to Have Compulsory Vaccines

  • In the U.K., the National Health Service (NHS) is administering the rollout of the vaccine according to a strict clinical order of priority. There is currently no ability for employers to buy vaccines privately or set up their own vaccination clinics.
  • There are no compulsory vaccines in the U.K. (even in high-risk industry sectors like health care) and the government has stated that it has no intention of changing the law in this area despite COVID-19.
  • Employers face significant risks in making vaccinations a condition of employment (especially in the absence of any legal requirement to be vaccinated). Employees may be able to bring claims for unfair dismissal, constructive dismissal, and/or discrimination if they refuse vaccination and suffer dismissal or other detriment as a result. If an employee refuses vaccination, the employer should consult with the employee to understand their reasons and consider whether alternative controls can be used to protect the workforce (e.g., telework where possible, face masks, social distancing, redeployment, etc.).
  • An employer may request that employees be vaccinated for the wider benefit of the workforce. Providing information and positive messaging around vaccinations, and allowing time off to be vaccinated would also be acceptable. It would get more difficult if positive financial or other benefits were offered to those who were vaccinated as it raises discrimination issues.
  • Going forward, the circumstances in which it may be mandatory for private sector employers to offer a COVID-19 vaccine to employees are likely to be limited. Employers can have a statutory duty to offer immunisation to employees who are at risk of exposure to "biological agents" because of their work (e.g., certain health care workers or certain laboratory staff), but this is a very narrow exemption.

Conclusion

Employers in Europe generally cannot make vaccination a condition of continued employment. Further, privacy laws such as GDPR limit employers in processing employee information relating to vaccinations. However, in some European countries, there is momentum for employers to be given more leeway to request proof of vaccination or obtain COVID-19 testing results—especially for employers in high-risk industries. Despite these restrictions, employers in many E.U countries and the U.K. are free to encourage employees to be vaccinated and create awareness on the impact of vaccinations on a safe working environment. For most European employers, a moral appeal to their workforce will be the most prudent course.

Three Key Takeaways

  1. Throughout Europe, mandatory vaccination is typically prohibited. Before taking any actions relating to employee vaccination (including seeking proof of vaccination, providing incentives for vaccination, etc.), employers must be mindful of applicable legal prohibitions, including data privacy laws and laws that prohibit discrimination against employees who refuse to get vaccinated.
  2. Most vaccines in Europe are distributed and allocated by the respective local states. Consequently, most European employers cannot set up their own vaccination programs. European employers generally are free to create awareness of the importance of vaccines among their workforce and, in certain countries, provide reinforcement (such as time off work for vaccination) to employees who wish to get vaccinated.
  3. The legal landscape in this area is expected to change rapidly in certain countries. We recommend employers consult with their local counsel in determining what actions to take with respect to vaccination in the workplace, including in connection with vaccination policies (if allowed by local laws) and before seeking information about employee vaccination status, encouraging or incentivizing employee vaccinations, or providing educational materials to employees.
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