Can employers order employees to be vaccinated?
Can employers ask employees if they have been vaccinated?
Can employers store information on vaccination status that employees have provided voluntarily?
Can employers require unvaccinated employees to take a test before entering the workplace?
Can employers reassign unvaccinated employees?

The government has announced a major relaxation of the measures that were put in place due to the covid-19 pandemic. One noticeable change will be the potential return to a more "normal" working life due to the high number of people who have been vaccinated against covid-19. Many employers, therefore, want to track their employees' vaccination status and ensure that as many of them as possible have been vaccinated. This article answers questions related to the extent of employers' rights in this regard.

Can employers order employees to be vaccinated?

According to section 3(8) of the Infection Control Act, only public authorities can impose vaccinations. As encroachment on individual privacy is strongly protected in Norwegian law and society, the government has maintained its position throughout the pandemic that vaccination should be voluntary.

Further, it has been argued that a vaccination order would not be viable in Norway as it would contradict both the Constitution and the country's human rights obligations.

However, employers are still free to encourage employees to be vaccinated if such encouragement is delivered in a justifiable and considerate manner. The employer can also arrange for the employees to be vaccinated and give them paid time off to do so.

Can employers ask employees if they have been vaccinated?

Asking employees about their vaccination status is a "control measure" according to chapter 9 of the Working Environment Act. This means that vaccination surveys can only be carried out in accordance with the rules provided for in the Act.

First, control measures require that tracking vaccination statuses is essential to a company's operations. Maintaining typical business-related activities in the workplace, infection control and health and safety are some of the conditions that can constitute grounds for tracking. However, justifying vaccination for operation purposes is not sufficient on its own; there must also be a justifiable purpose for the individual employee to be vaccinated. For example, the same infection control considerations do not necessarily apply to a waiter and a financial manager who work at the same hotel. Control measures must be suitable for achieving their purpose. Such a condition is not met, therefore, if the purpose can be achieved by other, less intrusive measures, such as general infection control measures.

Second, the measures must not disproportionately burden the employee. A balance must be established between the employer's aims and the consequences that employees will face if data is kept on their vaccination status.

In order to determine whether these conditions have been met, the employer must carry out a risk assessment. The requirements for justifiability and proportionality will be more easily met for employees who work with vulnerable groups or in the vicinity of customers.

However, for employees who work from a cubicle at their workplace or from home, the risk of infection is considerably lower and tracking employee vaccination statuses will be difficult to justify.

Last, the employer must discuss the control measures with employee representatives before they are implemented and arrange regular assessments that confirm the continued fulfilment of the relevant conditions. These discussions and assessments should be documented in writing.

Can employers store information on vaccination status that employees have provided voluntarily?

If the conditions for asking employees about vaccination status have not been met, the employer cannot store employee information, even if it has been provided voluntarily.

If the conditions for the control measures have been met, thereby allowing the employer to track vaccination statuses, the processing of such data must be carried out in accordance with the rules in the Personal Data Act and the EU General Data Protection Regulation.

This means, among other things, that the employer must inform employees in advance about how such information is processed and what rights they have as regards accessing and correcting it. The necessary data security and confidentiality practices must also be applied to these processes.

Can employers require unvaccinated employees to take a test before entering the workplace?

Similar to tracking vaccination statuses among employees, testing for covid-19 is also a control measure that falls under chapter 9 of the Working Environment Act; therefore, requirements for justifiability, proportionality and discussion also apply to covid-19 testing.

Such testing is also considered a "medical examination" under the chapter 9 of the Act. Therefore, additional conditions must be met before a testing measure can be implemented. There are only three specific situations that provide for employer-mandated medical examinations:

  • when there is an applicable law or regulation;
  • for positions that involve particular risk; and
  • when the employer deems it necessary to protect the health of employees.

Employers should seek advice as to whether testing can be justified given the narrow scope of possibilities.

Can employers reassign unvaccinated employees?

Employers may have the right to change unvaccinated employees' work duties without their consent under the "right to manage", which applies in all working relationships. However, where an employment contract or collective agreement stipulates the duties that the employee must perform, employers will be restricted within this right. The employer must also be able to provide a reasonable justification for the change (ie, it must not be arbitrary or based on external factors). Without such a justification or freedom under the right to manage, employers cannot reassign their employees.

Where these restrictions exist, the employer must:

  • refrain from changing the employee's duties;
  • try to enter into a voluntary agreement with the employee on the changed tasks; or
  • implement the change through redundancy with an offer of suitable alternative employment.

For further information on this topic please contact Ole Kristian Olsby or Lise Gran at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at