COVID-19 continues to cause significant restrictions in many areas around the world, including workplaces: Employees are working in remote settings, they no longer share tools and supplies, partitions separate workspaces, employees may not gather in common areas, and in-person meetings are reduced to a minimum. With distribution of the first vaccines impending, employers may expect a return to pre-pandemic practices. There is wide variation internationally on the approach to vaccinations. Below are answers to employers’ frequently asked questions about vaccinating global and multinational workforces. Episodes 21 and 22 of the Global Solutions podcast series regarding vaccine implementation in Canada and in Europe provide additional considerations for global and multinational employers considering implementing a vaccine policy.
Outside the United States, practically speaking, the drive for employers to incorporate vaccinations into their policies, even as an incentive or encouragement, is novel. There is little precedent for mandatory vaccination in many countries where vaccines are free and administered by the government. In addition, the United States is unique regarding employers’ involvement in health insurance and healthcare-related issues.
Question 1. Can multinational employers mandate that all employees globally be vaccinated as a general condition of their employment?
Answer 1. As a general principle, no. However, some variation exists among countries and the matter is still under consideration worldwide, with few countries having laws on the books that explicitly permit or prohibit employers from mandating vaccines. In addition, the matter is unlikely to be settled at least until the global supply of vaccines is sufficient such that any employee who wishes to obtain the vaccine may do so easily. For the moment, employers may want to consider a risk-based analysis in contemplating a global approach, being mindful of the underlying legal principles as well as the practical likelihood of a challenge. In some countries where the population will readily accept vaccination, an employee would be unlikely to challenge an employer’s policy (for example, this appears to be the likely scenario in some Asia-Pacific countries such as Japan and Korea).
While possible in the United States, mandatory vaccinations would likely be unsuitable in most non-U.S. settings. In virtually all jurisdictions outside the United States, employment is by contract and not at will, which means that as a general principle, employers must undergo a process of consulting with employees and/or obtaining their consent to change the terms and conditions of employment. Thus, it is not possible for employers to unilaterally change these terms and conditions. If an employer terminated an individual’s employment for refusing to comply with a mandatory vaccination policy, the employee could challenge the dismissal and may be entitled to damages and/or reinstatement, unless the employer’s mandatory vaccination policy was properly implemented and lawful.
Discussions are ongoing, with the majority of countries against mandatory vaccination at the workplace. For example, absent special circumstances, employers cannot mandate vaccination in the European Union, nor can governments justify it from the point of view of personal freedom. In Chile, the possibility of employer-mandated vaccination is under discussion, and in Canada, employers could consider, for example, access restrictions to the workplace where employees refuse the vaccination.
Q2. In what circumstances might a multinational employer mandate vaccinations?
A2. A circumstance in which mandatory vaccination may be permitted outside of the United States’ at-will employment context is limited to very specific industries and/or job categories. In principle, mandatory vaccination is more conceivable in industries where there tends to be a higher risk of exposure and spread (e.g., the healthcare sector).
In many countries, there is political discussion and examination of the possibility of mandatory vaccination in the areas of nursing and care for the elderly. Mandatory vaccination may be more likely upheld in areas of critical infrastructure generally as well.
Employers wishing to mandate vaccination in multinational settings may want to examine the business-specific reasons for doing so, articulate them, and tailor their policies narrowly toward those reasons. Even within key industries, the more closely companies can tie a requirement to a concrete reason, particularly one outside their direct control (e.g., a customer facility requirement) and apply it reasonably (e.g., not requiring vaccinations for employees who work from home), the more likely their policies might be upheld in the event of a challenge.
Depending on the country, employers mandating vaccination may be required to offer additional time off (without exhausting leave balance), be responsible for out-of-pocket costs (though the vaccine would be government-subsidized in many locations, this could include, for example, transportation), and potentially face liability in connection with damages caused by the vaccine.
Q3. Short of conditioning employment on vaccination, what options may multinational employers consider to encourage vaccination?
A3. Multinational companies have a variety of options they might want to implement short of mandating that employees be vaccinated. Among these are the following, all of which may require adherence to local laws in connection with COVID-19 employer response protocols (such as involvement of occupational doctors).
Global employers have considered using information campaigns and company internal communications as means of encouraging that employees get vaccinated. At a general level, employers may offer employees accurate and properly-sourced information about the vaccine, including the current priority phase in their jurisdiction. Employers could consider offering panel discussions with health experts or partnering with public health organizations as resources for their employees. Employers may be at potential risk, however, if their communications are coercive, or if they opine on vaccine safety or efficacy without citing medical experts or public health guidance.
Most privacy laws require that employers will need to ensure that they have properly notified and obtained consent from employees before using awareness campaigns that implicate employees’ personal information. For example, employers may consider a program under which employees can opt in to receive notifications of their own eligibility to get vaccines in a local jurisdiction. Since eligibility conditions may involve personal data such as age, in most locations this would require that employers obtain separate informed consent from employees and, to be useful, create a separate collection of sensitive personal data such as medical conditions.
Limiting Workplace Access
In practice, tying the mandatory vaccination requirement to workplace entry may be a more effective approach than tying it to employment. Even short of terminating employment for refusing a vaccine, though, changes to terms and conditions of employment (e.g., placing employees on unpaid leave or requiring remote work) would, to varying extents, be considered a breach of contract and/or a violation of the labor law. Employees in many countries can resign and claim “constructive dismissal” if their terms and conditions are changed unilaterally to their detriment. Requiring remote work may be a low-risk option for employees that can do so easily. In addition, a paid leave of absence may be a comparatively low-risk option as long as employees do not miss out on material opportunities. However, an unpaid leave of absence would be tantamount to termination, so employers may want to consider this option only as a last resort (particularly where government benefit programs exist in the event of a legitimate safety necessity).
Some employers may wish to consider separate safety protocols for vaccinated versus unvaccinated employees. If not a material detriment to employees, this could be a low-risk option. However, even this option could pose a concern, particularly to the extent it involves visible differentiation between vaccinated and unvaccinated employees. Employers may want to ensure that any such heightened safety requirements are justified based on public health guidance. (For example, if masks are required for unvaccinated employees but not vaccinated employees, employers may want to cite public health guidance that this would actually reduce transmission risk. However, this approach could be problematic as current guidance from the U.S. Centers for Disease Control and Prevention, as of January 13, 2021, states that employees who have received the vaccination should “continue using all the tools available to help stop this pandemic,” including wearing masks.)
Incentives for Prompt Vaccination
While some companies may consider offering a cash stipend, company merchandise, additional paid time off, or other incentives for employees to obtain the vaccine, it is likewise potentially problematic for employers to encourage behaviors such as agreeing to the vaccination in return for special benefits, payments, etc., as such programs can be interpreted as prohibited discrimination (e.g., in Europe). Additionally, and flowing from the principle that employers cannot unilaterally remove benefits because employment is not “at will,” employers may want to carefully draft incentive language to avoid the risk that incentives could be considered an “acquired right” to future compensation at that level, or a right to future incentives at that level for similar health-related actions.
Q4. What about the protection of personal data related to vaccination?
A4. In countries with comprehensive data protection legislation (especially, but not limited to Europe’s General Data Protection Regulation (GDPR)), employers are restricted in the types of health-related data they can collect and store, and must comply with notice and procedural requirements in processing health-related data. Information about vaccinations related to an individual is considered health-related data and therefore is protected. In some contexts, employers may not be able to collect employees’ vaccination status, or may be limited in the purposes for which they can process that information.
Episode 6 (July 21, 2020) of our Global Solutions podcast series provides more information regarding data-protection obligations in connection with COVID-19–related health data.
Q5. What can employers do on a global basis to obtain the vaccine as early as possible for their employees?
A5. Outside the United States, employers do not have the opportunity to lobby public health officials or local and federal governments to prioritize their employees for early COVID-19 vaccination. The vaccine priority will largely be determined by the government and health department, and many governments have set priorities in phases.
Q6. How can employers implement a policy regarding vaccinations?
A6. Even if a policy is valid, it must be implemented properly under local laws. Proper implementation will be critical with regard to mandatory vaccinations, which many countries consider to involve human body autonomy rights. Likewise, employers may want to identify locations in which they anticipate employee relations concerns in advance of rollout. In some locations, a vaccination policy may require consultation with works councils, trade unions, and/or other employee representatives. Without information, consultation, and in some cases consent of these bodies, employers may not lawfully install vaccination policies. In fact, some laws even allow employees to bring an action to enjoin policies that employers attempt to implement without required consultation. In most circumstances, such vaccination policies will be implemented as part of employers’ COVID-19 response protocols, which may require the involvement of occupational health providers.
Q7. Can employers ask employees whether they have been vaccinated?
A7. Most likely, if employers comply with local data-protection rules and can tie it to a lawful purpose. Generally, when an employer asks its employees about vaccination protection, it does so with the intent to protect other employees from infection. In this context questions about employees’ COVID-19 vaccination status may be permissible in view of the preventive care concept. Additionally from a privacy perspective, questions about an employee’s COVID-19 vaccination status are likely to be permissible. This is because there is a comprehensible reason for the employer to ask about the vaccination, and it is against this background that the associated processing of personal data in the current employment relationship may be legally justified.
However, even if the employer can ask whether employees have been vaccinated, employees are generally not required to answer this question. Any adverse employment action by the employer towards a reluctant employee may lead to future lawsuits on human rights grounds or discrimination etc.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.