Should companies require Covid testing or vaccination of their workers – and can they do so legally?
Recent spikes in the Covid-19 delta variant have stretched healthcare services and prompted some authorities to impose or reinstate social distancing and mask mandates. And the need to get business back to normal has encouraged employers to consider requiring their employees to be vaccinated before they can return to work.
David Orentlicher, a constitutional and healthcare law professor at the University of Las Vegas, said a vaccination mandate could be the right thing to do in terms of promoting public health and restarting the economy. “The barriers are not so much legal as employee relations,” said Orentlicher. “Employers in the United States generally have a right to impose requirements on their workers.”
There are three important exceptions to this, though. They are the contents of an employment contract, a contract with a union that may govern workplace mandates, and those with medical conditions or disabilities that prevent them from being vaccinated or who hold religious objections to vaccination. “In these cases, you have to make a reasonable accommodation. But if it is not possible, then you can exclude them from the workplace,” said Orentlicher.
In the UK, the situation may be different. “No jab, no job could be a dangerous approach for employers to take,” said Kate Hindmarch, partner in employment law at Langley Solicitors. “There is not enough evidence to suggest taking the vaccine makes everyone’s working environment safe.
“If an employer tries to force their employees to receive the jab or decides not to hire someone based on their refusal to get the jab, it could be result in employment claims, for unfair dismissal and/or discrimination.”
There are exceptions here, too, said Hindmarch. There may be a good reason to ask those working in healthcare or with vulnerable individuals to be vaccinated. A legal framework already exists to guide employers on the limits of their powers in the name of health and safety at work. However, this falls short of providing employers with the legal right to demand employees are vaccinated.
The situation is similar in the European Union (EU), where, with a few possible exceptions, it would not be legal to impose a requirement that workers are vaccinated.
Though vaccination does not entirely prevent the spread of the Covid-19 virus, it makes it less transmissible and should reduce its effect upon the vaccinated individual should they become infected.
“Your clients may feel safer knowing that you have mandated full vaccination,” said Elena Cooper, employment law consultant at Discreet Law in the UK. “You may be able to relax social distancing rules, subject to appropriate testing for even fully vaccinated employees.”
For reasons like this, New York City imposed a mandate in July requiring all municipal workers to be vaccinated by mid-September. Many healthcare sites and campus-based colleges also imposed requirements for those working on site. Some of these received legal challenges, but in each case the court found in favour of the employer.
Businesses, too, have been demanding employees vaccinate themselves across a wide range of sectors. CNN fired three unvaccinated workers who breached its protocols by going into the office. In August, Delta Air Lines decided to take a firm line with the vaccine-hesitant and become the first major business to impose financial penalties on the unvaccinated, levying a $200 healthcare supplement and banning them from corporate spaces such as workplace gyms.
Other US firms are considering using medical surcharges, imposing pay freezes, or even cutting pay to encourage workers to get vaccinated.
But in the EU, it seems questionable whether mandatory vaccination would be enforceable outside essential industries. Employees might be able to claim that making continued employment dependent on vaccination constituted unfair treatment under anti-discrimination laws. However, if an employer wants to ensure a safe work environment, they might consider requesting a submission of a fresh negative Covid-19 test.
Specific regulatory requirements will also vary from jurisdiction to jurisdiction. For example, Veronika Plešková, attorney-at-law at VP Legal in Prague, said that in the Czech Republic: “The testing must occur at the expenses of the employer, as under Czech law the employer may not transfer any business or safety and health precautions related costs on to the employee.”
Monitoring will also have to be robust and meticulous, added Plešková, as the processing of personal data will be subject to the GDPR (General Data Protection Regulation), the EU law on data protection and privacy.
Room for interpretation
The same is true in Lithuania, said Agnietė Venckienė, counsel and head of the employment practice at Vilnius law firm Sorainen. “Since vaccination is not required by law, the employer would not have effective legal tools against unvaccinated employees and currently, dismissal or unpaid suspension would likely be considered illegal,” Venckienė said.
Employment status can affect requirements for Covid testing or vaccination, too. For example, Lithuania does not identify gig workers as employees, so testing requirements do not apply to them.
“This issue is not sufficiently regulated in Lithuania and leaves a lot of room for interpretation,” said Venckienė. “Theoretically, platforms could require their gig service workers to vaccinate or to have an ‘opportunity passport’, but from the legal perspective this could raise some issues. And platforms should carefully consider GDPR implications to make sure that processing this health-related data is legal.”
The opportunity passport is Lithuania’s scheme to unlock the economy post-pandemic. Consumers who wish to use certain non-essential services after 13th September 2021 – stores, large shopping centres, entertainment venues and restaurants – must present a valid document. These passports are issued electronically to individuals who have been vaccinated, have Covid-19 antibodies from a previous infection, or who can prove a recent negative test for the virus.
Reluctance to have – or require – vaccination
Then there’s the question of whether vaccination requirements could create problems with hiring and retention.
Plešková said the volume of resistance in the Czech Republic varies across the country, and believes the response will largely depend on a company’s culture and communication with staff.
As Ordentlicher suggested, any negative response is likely to manifest itself in employees’ dissent. Some unions – and workers – in the US have taken exception to being forced to vaccinate, even in the healthcare sector.
Dr Amanda Belarmino, an expert in hospitality at the University of Las Vegas, has conducted research into the food delivery industry since Covid-19. She believes some of the reluctance to require vaccinations is because employers are already finding it hard to fill job vacancies.
But that is less of a concern for the gig economy, as “employees of third-party delivery companies like Uber Eats and DoorDash are considered contractors in the United States,” said Belarmino.“In some ways, it may be easier to require the vaccination, or because it’s a more fluid labour market, that may not be as challenging for food delivery as it is for restaurants.”
However, in the current job market employers will be wary of imposing anything that could discourage new people from filling jobs, and highly resistant to anything that might drive away existing workers, whether they are contractors or employees.
– Pádraig Floyd PlatformsIntelligence contributing writer
Photo: DoroT Schenk