For the greater good, is anything allowed? Where is the line between the interests of the individual, the employer and society? Can an employee be required to receive a coronavirus vaccination?
By now it has become clear that the coronavirus is present and will remain present worldwide for some time, so it is natural that people are seeking proper protection against the virus. Employers have the same need, but they view the current situation from a completely different perspective.
For a long time, there was a vaccine race among major pharmaceutical companies over who would be the first to obtain the necessary authorisations to market vaccines. In the midst of the great vaccine race, nearly half a dozen vaccines received the green light, leaving the question open: what comes next? When will everything return to normal?
Have employers breathed a sigh of relief with the arrival of vaccines? The vaccines are available, but are employees also willing to get vaccinated? What would be the consequences if an employer required its employees to be vaccinated against the coronavirus pandemic?
The Labour Code provides that the employer must ensure the requirements of work that does not endanger health and is safe, while the Occupational Safety Act provides that the employer is responsible for implementing the requirements of work that does not endanger health and is safe. However, this does not automatically mean that the employer would be entitled to instruct its employees to receive the coronavirus vaccine, even if it provides employees with the proper support for this in the form of any contribution.
It is important to see that what appears as a right for one person appears as an obligation for the other party in a contractual legal relationship with them. Therefore, if the employer were entitled to require employees to receive the coronavirus vaccination on a mandatory basis, this would appear as an obligation on the employees’ side. Questions would arise that go much further than one might first think, such as:
- who is obliged to pay for the vaccination;
- whether the employee is entitled to any so-called compensation for pain and suffering for the vaccination imposed by the employer;
- whether the employee is entitled to paid leave for recovery after vaccination in addition to their basic and additional leave;
- whether the employer may process health data, and if so, the question remains whether the employee has actually consented to the processing of their health data voluntarily and of their own free will.
Let us just consider this: if, according to the guidance of the NAIH, body temperature measurement ordered by an employer as a measure covering all employees is not considered a proportionate measure, would prescribing vaccination as a general obligation for employees be proportionate?
Furthermore, it must not be forgotten that vaccination itself, when imposed as an obligation by the employer, would be capable of infringing the individual’s right to self-determination in healthcare matters.
There are companies that have changed their communication strategy and, instead of imposing an obligation, seek to attach positive consequences to employees getting vaccinated. This is what ALDI in the United States did, assuring employees that there is no obstacle to those who want to get vaccinated going and doing so. Moreover, for those who get vaccinated, ALDI in the United States credits two hours of wages per dose in addition to their salary. This means that an employee may receive up to four hours of additional pay if they receive both doses of the vaccine.
However, there are important factors that cannot be ignored. For example, there may be cases where a given employee is allergic to one of the vaccine’s ingredients, or where the employee does not want to be vaccinated because of religious or ideological beliefs. In such sensitive cases, employers must proceed with the greatest possible care. Many may wonder: if we have been waiting so long for the vaccines, why this hesitation now, and why will it not be mandatory for everyone, with those who do not want it simply not participating? The above-mentioned American ALDI solution illustrates this well, since employees who get vaccinated receive a kind of reward there. But if we think about it again, this is nothing other than differentiating between employees on the basis of their health status, which constitutes a violation of equal treatment. Why is that? Let us stay with the example mentioned above: employees who do not get vaccinated are placed at a disadvantage on the basis of their health status, namely their unvaccinated status, compared with employees who do the same work for the same pay as their colleagues who stay away from vaccination, but who choose to receive the vaccine.
What, then, could be the solution to this Gordian knot? It is clear that imposing a mandatory requirement is excluded from the available options for the reasons mentioned above, but then what remains? Primarily internal corporate communication that highlights the benefits of vaccination, and then, without being aggressive, draws attention to the fact that the company encourages employees to get vaccinated, without employees feeling that this amounts to pressure.
There is not yet a universal solution to the problem, but given the short time that has passed, this cannot be expected. One thing is certain: we can only hope that life without masks will not remain a memory of a bygone era.
This article reflects the author’s opinion, but does not constitute a legal opinion or legal advice.