Return-to-office policies were a hot topic this summer as employers were busy preparing for the September re-opening of workplaces. The question of the accompanying health-and-safety measures remains a tricky one to deal with for global organisations. This blog post focuses on testing and vaccination protocols.

A lot has happened since we last wrote on this topic in our April blog post:

  • the EU Green Pass (also called the COVID-19 passport) entered into force on time for the summer holiday period;
  • France made vaccination compulsory for healthcare workers and other categories of workers;
  • the US president called for vaccination to become mandatory in the private sector; and
  • Italy is planning to make the Green Pass compulsory to access any workplace.

People across Europe and beyond are certainly more relaxed than before the summer when it comes to taking tests, vaccines and sharing the related status: most of us did it just to be able to go on holiday (or, in some countries, access a restaurant). But does this mean that global employers can apply a blanket approach, mandating testing and/or vaccination and asking for status updates? The answer is no. There remain huge variations across regions and countries.

As we emphasised in our previous blog posts, an employer’s duty to ensure the health and safety of its workforce often competes with other rules deriving from employment, anti-discrimination and privacy laws, particularly an individual’s right to determine if and when to accept medical treatment (which includes being vaccinated). Therefore, employers cannot – save for where there is a clear local statutory provision mandating vaccinations for some or all of the population – impose vaccination (and in most cases, testing) on their employees.

Europe

At a European level, save for the EU Green Pass, there is still no guidance or legislation to make vaccination mandatory. Vaccination of individuals is thus still voluntary under EU law, but as noted above, the Green Pass has indirectly helped with the vaccination of employees.

At a national level, employers will need to navigate the various approaches and regulations. After Italy (see our earlier blog post), France and Greece are the next EU countries to impose employee vaccination (or, in Greece, testing or proof of recovery from COVID-19 – see below).

In France, since September, several categories of employees (including medical and paramedical professionals working in hospitals, clinics and retirement homes, firefighters, ambulance drivers and more) have been subject to mandatory vaccination. Only those with a proven medical condition are exempt.

Mandatory vaccination cannot be imposed on other categories of employee and employers are not allowed to ask about vaccination status. However, if an employee wishes to get vaccinated, their employer must facilitate this (eg by allowing the employee to take time off to get vaccinated during working hours).

Besides, employees working in close contact with the public (such as restaurants, movie theatres, buses and trains) are subject to the obligation to present a sanitary pass, which is granted after vaccination or a negative COVID-19 test.

Employers must make sure that their employees comply with the obligation to be vaccinated against COVID-19 or to present a sanitary pass when required. Refusal to do so may lead to suspension of the employment contract and remuneration. However, dismissal for failure to comply with these requirements is not possible at present, which may in the long term create difficulties for employers that would need to replace uncooperative employees.

Russia has implemented a similar approach. This summer saw most Russian local sanitary authorities obliging employers in specific sectors (related to close/extensive contact with other people) to arrange vaccination of a given percentage of their employees within a certain time frame and to report on progress. Refusal of vaccination may lead to unpaid leave.

Going beyond what Italy, France and Russia have imposed, Greece now requires employees to take regular tests, as a general rule, or show proof of vaccination or recovery from COVID-19. Similarly, in Switzerland, since 13 September, employers have been authorised to ask employees to provide a COVID-19 certificate (indicating either vaccination, negative test or proof of recovery from COVID-19). Unlike Greece, employers can, on meeting certain conditions, ask all employees to show their vaccination certificate, but employees have no obligation to do so.

Italy is going a step further when it announced on 16 September that it would adopt a new law that is expected to mandate a 'Green Pass' (proving vaccination, a negative test within the last 48 hours or recovery from COVID-19) for all employees, as of 15 October. Failure to comply could lead to fines of up to €1,000, whereas unjustified absences at work because the employee lacks a Green Pass can lead to their suspension.

Other European countries are maintaining a more flexible approach, with Austria allowing the possibility of imposing protective measures (particularly testing and vaccination) for certain groups of (healthcare and the like) employees, but with no general right or obligation to have employees tested or vaccinated.

In Germany, only employees working in certain sectors (healthcare and education, among others) are obliged to reveal their vaccination, testing or COVID-19 recovery status if asked. However, they are not obliged to get vaccinated. And while proof of vaccination, testing or recovery from COVID-19 (the so-called '3G approach') or proof of vaccination or recovery (the 2G approach) is asked in nearly all public settings (eg when visiting a restaurant), in workplaces only the usual measures (such as social distancing, mask-wearing and adequate ventilation) apply.

This approach did not change when a new version of the health and safety ordinance came into effect earlier this month. According to the ordinance, the existing sanitary measures and the existing duty of employers to offer at least two free tests per week to all employees will be maintained. In particular, employees working in certain jobs with direct customer contact are obliged to take tests twice a week if they do not provide proof of vaccination, testing or recovery from COVID-19.

In addition, the ordinance says that employers must allow employees to be vaccinated during working hours, and inform employees about the health risks associated with COVID-19 and the possibility of a protective vaccination. At state level, there are different initiatives: for example, North Rhine Westphalia and Saxony have made it mandatory that employees returning to the office from holidays take a rapid test, unless they provide proof of vaccination or recovery from COVID-19.

In Spain, the discussion is even lighter, given that vaccination is considered a right (not an obligation) and a high percentage of the population is already fully vaccinated. Hence, employers cannot oblige employees to get vaccinated. Spanish courts have stopped any attempt by regional governments to change this (read more below).

The situation in the UK is similar to elsewhere in Europe, with no broad legislation requiring the mandatory vaccination of employees. The exception is for care-home staff where, from November 2021, legislation will require them to be vaccinated. In its latest guidance, the UK government has outlined a number of suggested measures for the return to workplace, and the UK government’s latest self-isolation guidance includes an exemption from self-isolation where employees have been fully vaccinated for at least 14 days.

We are seeing UK employers take various measures in connection with the return to the workplace, including asking staff to take lateral-flow tests once or twice a week in advance of going into the office as a mitigation measure. However, the disclosure of vaccination or testing information by employees is likely to raise data protection and employment law issues. So asking employees to disclose the results of any COVID-19 test undertaken or their COVID-19 vaccination status is not recommended. In addition, up until now we have not seen any UK employers pursuing mandatory vaccination for staff (other than in the care-home setting as mentioned above).

Litigation deriving from testing/vaccination requirements

There is very little case law so far. The first claims have been brought in Italy, which are against employers that imposed testing/vaccination obligations. These are sector-specific cases (concerning healthcare employees), where the courts found that the employers' decisions to respond to testing/vaccination refusal by imposing unpaid leave or annual leave, or reducing salaries were lawful. Most recently, in the UK, two care workers who claim that the vaccine mandate is 'an unlawful and unnecessary restriction' have challenged the government’s mandate to vaccinate care-home staff.

In Spain, courts have ruled to suspend regional regulations aiming at mandating vaccination for the whole population. It is likely that the courts will continue to sanction attempts to make vaccination compulsory, for either the population as a whole or certain categories of worker.

United States

The Biden administration’s latest initiative on vaccination, as announced in early September, is probably the strongest one by any key jurisdiction and will have a wide impact, with other jurisdictions following suit.

Vaccination was made compulsory for federal employees at the beginning of the summer. Some of the exceptions have now been removed. Disabilities and religious objections are still possible but weekly testing is no longer an option to avoid vaccination.

The most commented announcement was the one about the private sector: the president asked his administration to draft a regulation making vaccination mandatory in all business with over 100 employees, with weekly testing remaining an alternative. While the new regulation is awaited, it is likely that employers will continue to be asked to help the vaccination drive by granting paid time off to employees that want to get vaccinated, as set out in the Occupational Safety and Health Administration’s current guidance.

Conclusion

Because of the regulatory challenges around testing and vaccination in Europe and beyond, we see employers incentivising testing/vaccination by resorting to softer types of tools to be used on a purely voluntary basis and with no personal data collection.

For instance, some employers are making free rapid tests available in the workplace for all staff, proposing voluntary and anonymous surveys, and launching vaccination information campaigns with the support of their occupational health teams. Some employers have even offered financial incentives to employees who choose to get vaccinated, but this remains a debatable idea.

Testing, vaccination and COVID-19 certificates are often seen as measures that re-assure both other employees in the workplace and employers themselves that the risk of infection is low. However, they should only be considered as an additional layer of protection rather than a substitute for existing measures, such as wearing masks, applying hand sanitiser and observing social distancing.