May I require COVID-19 vaccination of my employees as a condition to enter the workplace?
May I implement different rules or requirements for vaccinated and unvaccinated employees, contractors, vendors and/or visitors?
Get the answers to these frequently asked questions in this recorded webinar. It includes the legal and practical considerations of vaccine mandates in Canada, China, Hong Kong, Mexico, Germany, the UK, and the US and critical strategies for reducing your transmission risk at the workplace.
This vaccine mandate portion of the presentation was developed by the professionals from Faegre Drinker Biddle & Reath for a webinar held on Sept. 17, 2021.
This presentation is for informational purposes only. It is not intended as legal advice for any specific situations and will not be updated after it has been distributed.
Here are some best practices and measures that employers must consider when determining how and whether to roll out COVID-19 vaccination policies.
Prepare a Health & Safety Risk Assessment
Prior to requiring employees to work from the office, employers in certain jurisdictions outside the United States may be required to:
- have an adequate justification for such action and such should be provided in the risk assessment
- ensure that in-person work is necessary for the role (that is, the role cannot be performed remotely) and
- exempt employees who have legitimate medical/religious reasons not to attend the workplace.
Local law in some countries also may require or recommend employers to ensure that all necessary health and safety measures are implemented (e.g., proper ventilation and use of face coverings) and that the physical workplace can accommodate social distancing of all employees.
In addition, depending on local legislation and guidance, employers may not be legally permitted to limit office access only to vaccinated individuals and may not be allowed to implement different rules/requirements for vaccinated and unvaccinated employees.
Prepare a Data Privacy Impact Assessment
Employers must be aware of specific countries’ data privacy regime when considering any type of COVID-19 vaccination program or policy. In particular, employers should consider and document the lawful basis under the applicable data privacy regulations for processing the data, which would be deemed special category data under the General Data Protection Regulation (“GDPR”) and local data protection principles.
Importantly, from a data protection perspective, even in countries (particularly in EU Member States, where GDPR requirements are rigid) where employers may ask or require employees to disclose their COVID-19 vaccination status on a vaccination acknowledgement form, employers only may do so if they have a legitimate reason (e.g., health and safety or public health) for the data collection, only use the vaccination information for such purpose and do not use such information in a way that results in discriminatory, unfair or unjustified treatment of employees.
For more on data privacy, please see the webinar presentation.
Monitor Local Government Legislation and Guidance on Vaccine Mandates
Currently, outside the US, employers generally either cannot or should not require employees to receive a COVID-19 vaccination. Generally speaking, receiving a COVID-19 vaccination must be a voluntary decision of employees. As such, employee consent is required. This general practice, however, may change in the coming weeks and months as governments continue (or begin) to review the efficacy of a COVID-19 vaccination requirement. Due to the current uncertainty surrounding COVID-19 vaccinations (i.e., in terms of side effects, long term effects, how long the vaccine is effective, etc.), it is reasonable to expect that there will be legislative guidance to help employers that would like to implement vaccination programs. In many cases, it is still premature to address these issues definitively. Employers should continue to monitor whether governments where their offices are located impose any type of COVID-19 vaccination mandate.
Unless governments allow employers to require their employees to receive a COVID-19 vaccination prior to entering the workplace, employers should be aware of certain themes. When COVID-19 vaccinations are voluntary, employers may not discipline or dismiss employees for their refusal to receive a COVID-19 vaccination, especially where employees may work from home. In addition, even if employees consent to the COVID-19 vaccination, employees likely still may claim that their consent was not freely given and that they consented to the vaccination in order to retain their employment. A court may accept such a claim. Unsurprisingly, employers also may not discriminate against employees who refuse COVID-19 vaccinations.
Finally, employers should consider the practical effects of requesting employees to submit to a COVID-19 vaccination where employee consent is required. In such case, employers generally should not condition employees’ return to the workplace upon employees’ submitting to a COVID-19 vaccination or providing proof/certification that they have received a COVID-19 vaccination. This will help to avoid a situation where employers might have many employees who cannot attend the workplace because they are unwilling to submit voluntarily to a COVID-19 vaccination and/or to disclose whether they have received the vaccine.
For more information on the policies for Canada, China, Hong Kong, Mexico, Germany, the UK, and the US, please see the full webinar presentation.
Erika Collins, partner at Faegre, Drinker, Biddle & Reath, handles complex cross-border employment and human resources needs for multinational clients. With nearly three decades of experience supporting multinational public and private companies, Erika brings substantive knowledge of the unique laws governing workforce expansions and reductions, personnel policies and employee data privacy. She routinely conducts multicounty audits to inform critical compliance advice. She is also well-versed in international differences in business and social customs, making her a strategic partner in cross-border deals and employee mobility matters. Erika has done work in more than 150 countries and serves as the co-leader of the firm’s international employment law team.
Ryan Hutzler works with public and private multinational companies on international employment and human resources matters. Ryan helps clients across a range of industries — including energy, financial services, health care, media, pharmaceuticals and technology — manage an international workforce, with a particular focus on the challenges that derive from cross-border legal and cultural differences.