Daniela David Laura Popa March 31 2021 COVID-19 vaccination and employees: the stick, the carrot or just nice to have? Vernon|David | Employment & Immigration - Romania Daniela David, Laura Popa Employment & Immigration IntroductionCan employers require employees to get vaccinated?Can employers promote vaccination?Can employers grant benefits to employees for getting vaccinated?Can employees who refuse vaccination be made to work from home or telecommute?IntroductionCOVID-19 vaccination is a hot topic globally, with newspapers worldwide keeping a running score of vaccines given, percentages of the population covered and how well nations are doing (or not doing) during this period. The good news is that the light at the end of the tunnel can be seen in Europe and North America, with expectations that life will soon return to 'normal' (whatever normal might mean moving forward).Romania is no different. Remarkably, it has one of the most efficient vaccination campaigns in the European Union. At the time of writing, Romania had vaccinated more than 1.5 million people, ranking sixth in the European Union for the total number of doses administered. In addition, on 15 March 2021 Romania made the vaccine available to the general population.In light of this progress and as the vaccination campaign moves forward, Romanian employers are asking a series of questions regarding the impact of vaccination on their workforce. Unfortunately, there is little guidance on such matters, leaving significant ambiguity as to how the authorities or the courts might respond to a particular case. With that in mind, this article sets out some of the most common questions that employers are asking and provides suggestions on how to address some of the underlying uncertainties.Can employers require employees to get vaccinated? As a general rule, for most classes of employee, it is unlikely that employers could require vaccination (with 'require' meaning that employers could take disciplinary or other actions against employees who refuse, without reasonable cause, to get vaccinated).Under Romania law, employers have a general obligation to keep their employees and their workplaces safe and healthy. However, these general provisions are unlikely to be enough to give employers the ability to require vaccines for two reasons. First, as part of the COVID-19 vaccine programme, the rules specifically state that vaccines are to be voluntary. In Romania, everyone has a legal right to decide freely whether they have a vaccine. At present, there is no specific legal basis allowing employers to limit this freedom.Second, employers' general obligation to ensure a safe workplace may not be deemed sufficient to overcome the freedom to not vaccinate, as long as there are legal and health provisions or practices in place intended to limit occupational exposure to COVID-19. In other words, as long as employers have other means through which they can manage and mitigate the risk of COVID-19 in the workplace, it is unlikely that requiring vaccination will be viewed as strictly necessary to keeping a workplace safe.For example, under the current 'state of alert' in Romania (which has been extended until 13 April 2021), employers must comply with a series of anti-COVID-19 measures, including:the mandatory implementation of teleworking or the work from home regime (whenever possible);the division of personnel into groups to start and finish activities at various hours (for employers with more than 50 employees);the regular disinfection of work areas and spaces; andensuring adequate protective equipment for employees.Although employers generally cannot require their employees to get vaccinated, it is not impossible that, in certain specific cases, the courts could deem mandatory vaccination imposed by employers reasonable. For instance, in professions and activities where there is a high risk of COVID-19 and mitigation efforts (eg, the ones listed above) have been viewed as insufficient to protect employees, a case may be made to require vaccination. However, if companies want to impose such requirements, employers should conduct consultations with their union or employee representatives and with any appointed occupational physician or the occupational health and safety committee (if applicable). The idea would be to both develop 'buy-in' from employees and experts and ensure that such measures are appropriate before imposing vaccination requirements.Can employers promote vaccination? Yes, promoting and supporting vaccination is possible and appropriate. The main concern or issue that arises with encouraging vaccination is ensuring that such promotion is reasonable and fact based. Thus, a good promotion campaign should provide reliable information to employees, countering myths and untruths about vaccines and addressing employees' genuine concerns. Employers should avoid emotional statements or pleas and keep the promotion campaign focused on regular communication. The idea is to encourage, not to be seen as pressuring or harassing employees.Employers could:prepare an information campaign, in collaboration with the occupational physician and the person responsible for employment health and safety, presenting the benefits and risks of vaccination and the risks to which employees may be exposed, particularly to the risks associated with the workplace or the performance of their duties;organise, in collaboration with the occupational physician (and with other specialists, if possible), a personalised advisory programme for employees regarding vaccination. Employers must keep in mind that they should take all measures to ensure the protection of employee personal data, especially health data;draft guidance and information for employees; anddevelop an internal policy that includes their view of supporting vaccination against COVID-19 as an additional measure aimed at creating a safe working environment for all employees.However, there is an increasing polarisation in opinion with regard to vaccines. Employers should pay attention to issues, concerns and stigmas against individual employees due to their view on vaccines (whether for or against). In such a context, employers should take steps to prevent discrimination, harassment or intimidation in the workplace. Keeping information and encouragement fact based is important in this regard.Can employers grant benefits to employees for getting vaccinated?There is no easy answer to the question of whether employers can grant additional benefits to employees who get vaccinated (eg, paid days off or bonuses). There are two main aspects which employers should address if they are considering offering employees such benefits.First, differentiating between employees in terms of their option to be vaccinated against COVID-19 may be deemed as a violation of the principle of equal treatment in relation to employment, considering that both employees who choose the vaccination and those who refuse it have essentially exercised their lawful right to select between accepting or opposing vaccination. Moreover, employers must consider that there may be employees who cannot get vaccinated (even if they want to) due to health reasons and employees who will not get vaccinated due to religious restraints. If such employees would be excluded from the benefits, they may claim discrimination based on a health condition or religious beliefs.Second, employers should consider that by granting these benefits, they will inevitably end up processing and storing information regarding employees' options on vaccination. Data pertaining to vaccination represents a special data category, which is subject to special data processing and storage provisions. Processing any kind of personal data must rely on one of the relevant grounds for processing determined by the data processing regulations in force. From this perspective, it should be mentioned that with regard to employment relationships, employees' consent regarding the processing of their data is debatable, given the hierarchy of such relationships.Can employees who refuse vaccination be made to work from home or telecommute? No, employers cannot require employees to work from home or telecommute if they are unvaccinated. Employers must remember that teleworking is normally consensual and requires that both parties agree to the arrangement. If someone is unvaccinated and they wish to work from home or agree to do so, this should not be an issue (assuming that the appropriate work rules are in place).As noted above, the present state of alert in Romania requires employers to allow people to work from home if they can perform their duties remotely. However, discriminating against or singling out employees for refusing vaccination is highly problematic.Moreover, electing employees who remain at home will inevitably lead to collecting and processing data regarding their vaccination options, which – as stated above – is subject to special data processing and storage provisions of the EU General Data Protection Regulation (2016/679). However, employers may collect from their employees anonymous data concerning vaccination (eg, employees may be required to answer anonymously whether they have been vaccinated).For further information on this topic please contact Daniela David or Laura Popa at Vernon|David by telephone (+40 2131 156 54) or email ([email protected] or [email protected]). The Vernon|David website can be accessed at www.vdalegal.com.