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.
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
French Employers Are Expected to Play Major Role in Fighting the COVID-19 Pandemic
In Germany a Legal Obligation to Get Vaccinated is Not Expected
In Italy, Vaccination is Voluntary, but the Debate on Safety at Work is Intensifying
No Compulsory Vaccination by Employer in the Netherlands, but More Leeway to Work with Vaccination Certificates Expected
Spain Awaits Specific Case Since There is No Legal Exception to Voluntary Approach
No Intention in United Kingdom to Change the Law to Have Compulsory Vaccines
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