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International: COVID-19 – Vaccinating the Workforce – Challenges for Multinational Employers

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In brief

The news that a COVID-vaccine is finally becoming a reality presents organizations with the possibility of returning to business as normal. While governments and health organizations are in the throes of planning their vaccination programs and pre-ordering the vaccines, with regulatory approval still pending in most countries, there is uncertainty about the timing, viability and availability of a vaccine.

Widespread availability of the vaccine may still be some way away from being a reality. The WHO’s Strategic Advisory Group of Experts on Immunization (SAGE) suggests priority groups for receiving the COVID-19 vaccine should include frontline health and care workers at high risk of infection, older adults, and those with underlying conditions at high risk of death (e.g. heart disease and diabetes).

Nevertheless, employers around the globe are keen to prepare for the possibility of utilizing the vaccine to protect their workforces, to promote business continuity, and to mitigate the current health and safety risks of a return to the office.

Key Considerations for Employers

Many businesses will be well versed on the issues that accompany workforce vaccination programs, most particularly those in healthcare. However, given the severe disruption of the COVID-19 pandemic and the pressing need for the vaccine, more employers across other industries are likely to be considering the possibility of enforcing mandatory vaccinations among staff and how to treat workers who opt out of the vaccine. Could such individuals be prevented from doing certain types of work, from entering a workplace, or from being offered a job?

We expect that some governments are likely to want to intervene and offer some direction to employers as the vaccine becomes more readily available. In the US, the Equal Employment Opportunity Commission (EEOC) has issued regulatory guidance on this topic. Those authorities that already apply mandatory flu vaccination programs for certain types of workers or individuals may take the same approach with a COVID-19 vaccine.

In the meantime, existing frameworks and previous legal decisions around workforce vaccinations such as the flu help to identify some of the key issues for employers in applying a vaccination policy:

  • Accommodating medical conditions and/or disabilities: Workers who have certain medical conditions (including, potentially, mental health conditions) may have reason to be concerned about the effect of the vaccine. Such workers, as well as job applicants who are not recruited because of their vaccine status, may have claims against an employer who insists that they be vaccinated as condition of their employment. Businesses will need to consider whether there are other means to protect the workforce in seeking to avoid such risks.
  • Accommodating different belief systems: Individuals may have religious beliefs which prohibit vaccination, or prevent their use where they may be derived from prohibited animal products, for example. Some jurisdictions may also have laws giving similar protection against discrimination because of philosophical or other non-religious beliefs. Employers need to consider local requirements to accommodate belief systems and whether an employee’s objection falls within such a category when determining how to apply any policy on vaccinations.
  • Human rights: In some frameworks, the right to autonomy is enshrined in human rights law and presents a challenge to enforcing a vaccination. Courts would take this into account when determining the fairness or validity of such a policy and employers would need to ensure they fully assess the risks in light of such legislation.
  • Personal injury: With reports that there may be side effects from some of the vaccines, are employers at risk of claims from employees who become unwell as a result of being vaccinated? Much will depend on whether the vaccine is enforced by the employer, or taken voluntarily, as well as on local regimes for work injury liability, along with insurance policies.
  • Data privacy: Information about who has and who hasn’t been vaccinated would be sensitive data that would need to be kept securely and handled according to local rules. Such information may be held by an intermediary, depending on who is engaged for the purposes of administering any vaccine, and caution would need to be taken about a) who had access to this information and b) any decisions made about discipline, dismissal or recruitment based upon such data.
  • Pay and leave considerations: Other considerations around implementing a workplace vaccination program include who must pay for it and whether workers must be compensated for the time it takes to be vaccinated. Businesses will need to draw on existing workplace vaccination practices, government guidance and domestic laws to remain compliant with requirements.

 

Conclusion

Comprehensive consideration of the challenges of applying a COVID-19 vaccine policy at this early stage of the global vaccination roll-out will help to identify the right strategy for engaging with a vaccine. Companies will be well advised to monitor local government guidance in relation to the use of a vaccine and to consider existing frameworks for vaccination policies that may apply in their industries and/or jurisdictions as they plan their vaccination programs.

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