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Vaccinating Europe: balancing employer and worker rights
26/02/2021
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Everything will be alright
Authors
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Marcello Floris
Marcello Floris is a partner and co-head of Eversheds Sutherland’s employment and pensions team in Italy

The spread of the coronavirus has given rise to a vast number of issues for employers. These include assessing the risks faced by their staff while at work, and developing measures to contain those risks; complying with local laws and guidance; identifying how much flexibility employers have to adapt their working arrangements to ensure business continuity; and special measures to protect vulnerable employees.

In recent weeks, the introduction of the vaccine has significantly altered the outlook, and offers hope of light at the end of the tunnel.

However, at least in Italy, a significant number of workers are very wary of the covid-19 vaccines because they have been developed in a very short time under the pressure of a health emergency. This poses an additional complication: when the vaccines become available for the majority of workers, will such employees be entitled to refuse to take them? And if they refuse, what will the consequences be for these workers from a disciplinary standpoint? Is a dismissal or a sanction possible?

A wide-ranging debate has arisen from this. According to one theory, employers are entitled to dismiss an employee who refuses to take the vaccine. Such a stance, however, ignores the fact that no rule about compulsory vaccination has been introduced, and according to article 32 of the Italian Constitution, an individual cannot be forced to take any medical substance without a specific law that imposes it. It follows that an employer is not entitled to impose a sanction due to refusal if the medical treatment is not mandatory.

Employers could be obliged to enhance the company’s health and safety provisions by facilitating access to vaccinations for their employees

Also, while according to article 2087 of the Italian civil code employers are required to ensure the health and safety of their employees, this obligation cannot be construed as an imposition of the vaccine. At most, in compliance with article 2087, employers could be obliged to enhance the company’s health and safety provisions by facilitating access to vaccinations for their employees.

Moreover, employers are not entitled to establish the terms and conditions of delivery of the vaccine and the employee is under no obligation to inform their employer whether or not they have been vaccinated. Therefore, in the absence of any evidence of the availability of the vaccine, a sanction does not seem to be applicable.

The employer is, however, entitled to evaluate whether an employee that refuses to be vaccinated is still fit for their work duties, considering the role that the employee holds. If an employee’s ability to perform their work is compromised by a lack of inoculation, the employer is entitled to impose remote working or a change of work duties or, in the absence of other alternatives, temporary unpaid leave and, ultimately, to terminate the employment relationship.

Alternatively, an employee may be dismissed for justified subjective reasons, such as for serious non-fulfilment of a health and safety rule, but again the grounds of such a dismissal may be highly questionable because of the above-mentioned article 32 of the Constitution that entitles citizens to refuse medical treatments not specifically prescribed by law.

Other legal opinions state that a dismissal for justified objective reasons may be admissible (ie, a dismissal not based on misconduct, but based on the fact that the employee can no longer perform the work for which they were hired). If this theory is correct, employers will have to provide evidence of the fact that there is no available alternative job position that the dismissed employee could suitably move to.

While that is the situation in Italy, it is worth considering the situation in other European countries.

The UK

Compulsory vaccination is not expected to be introduced by the UK government. In the absence of such a measure, employers in the UK may face legal risk, including unfair dismissal and discrimination claims, if they dismiss workers for refusal to be vaccinated.

UK employers may, however, be able to require employees to be vaccinated under a “work rule”, although this step will require careful consideration and robust justification. Where employees can work remotely, such justification is unlikely to be present.

Further, if an employee is lawfully excluded from the workplace, any impact on pay should be considered carefully and in light of the employee's reason for failure to be vaccinated.

France

Employers in France have a legal duty to ensure the health, safety, and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public. Regulations require employers to “take the necessary measures to ensure the safety and protect the physical and mental health of employees”.

Vaccination is voluntary and there is no legal obligation on individuals to be vaccinated. Therefore, employers cannot lawfully dismiss or exclude unvaccinated employees from the workplace.

Germany

Employers in Germany have a legal duty to ensure, so far as is reasonably practicable, the health, safety, and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public.

As long as there is no vaccination obligation (at least for certain occupational groups), refusal alone cannot lead to dismissal. In certain professions (such as medical fields), employers may no longer contractually employ unvaccinated workers for activities involving direct contact with residents and patients.

If there are no other employment opportunities, the employment of such a worker is not practicable, as in the case of a driver without a driver's licence, a pilot without a pilot's licence, or a lawyer without a licence. Employees who fail to get vaccinates must expect the withholding of remuneration (no pay without work).

Spain

Employers in Spain have a legal duty to protect, so far as is reasonably practicable, the health, safety, and welfare at the workplace of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public. The vaccine is voluntary.

In the workplace, employees may, in principle, be required to be vaccinated under certain conditions. However, from a practical perspective, it is considered unlikely that this would be required, particularly where other preventive measures are available.

The Netherlands

In the Netherlands, employers cannot require employees to be vaccinated as this would constitute a violation of the right to privacy or physical integrity. Employees cannot be obliged to share with their employer that they have received a vaccine either. Given the latter, disciplinary action and even dismissal are not likely to be possible under Dutch law.
 
However, the Health Council – an advisory body to the Dutch government – has advised whether shops, companies, catering establishments, and other private parties may ask visitors to demonstrate that they have been vaccinated through a vaccination certificate.

According to the council, employers can only consider requesting a vaccination certificate if employees cannot work from home and the risk of infection cannot be mitigated in any other way. For example, if a non-vaccinated employee can be transferred to another department. The legality of requesting a vaccination certificate shall be assessed for each job category.

Only in these exceptional circumstances and if it is not possible to relocate such an employee to an alternative suitable position, then it may be possible to stop salary payments and even dismiss the relevant employee. It is unclear whether the Dutch government will adopt the council's advice.