Cross-border: The COVID Vaccine and Thoughts for Global Employers

People all across the globe are experiencing the highs and lows of the current pandemic. Hopes are raised in different parts of our world that the situation is coming under control, only for them to be dashed yet again, with progress made turning into disappointment as we find ourselves hit by another yet more aggressive wave. To say that the imminent availability of a life-saving vaccine is a matter of hope is a massive understatement!

As employers, it is important to work through the issues and challenges that will arise and, while many of the questions remain unanswered, considering these matters in advance will at least ensure organisations are as well prepared as they can be in unchartered waters.

Can I force my staff to be vaccinated?

The level of mandatory enforcement by employers will be determined by the approach each government takes to the vaccination programme, the organisation’s business and the roles performed by their staff. Individuals working in the highest risk categories such as direct health care will be looked at differently from those carrying out their role at home. However, in most countries it seems unlikely that employers will be able to insist that their staff are vaccinated.

Can I fire someone who refuses to be vaccinated?

How an employer can lawfully respond to an employee’s refusal to be vaccinated is one of those issues when a blanket policy just will not work. Different countries will allow different responses which will clearly depend on the way in which the employment law regime operates.

Most countries operate far away from the “at will” environment of the US, such that any decision to terminate an employee’s contract is a difficult one without considering the added complexity of emotions that would surround terminations in these circumstances. In countries with developed collective consultation mechanisms, a business should expect those bodies to use their full muscle to influence any decisions, but particularly those which threaten or impose terminations.

If I can’t fire someone who refuses to be vaccinated, can I at least isolate them from the rest of the workforce?

Employers are going to have to consider how they handle individuals who will not consent to being vaccinated while remaining in employment. Of course, this consideration also brings into play the obligations and responsibilities to the other members of staff and third parties who have contact with such an individual.

It should not be presumed that taking what may seem to be sensible steps to isolate the individual will be lawful and without potential significant risks. An individual may allege that their decision to refuse the vaccination is based on a medical condition or due to a religious or philosophical belief that is protected under local law. There is also the issue of ensuring that any action does not target or negatively impact on any part of the workplace community in terms of ethnicity or gender or any other protected characteristic.

The fact that an employer invariably has broad responsibilities for the health and safety of all its staff is of course critical and requires logical, well-reasoned decisions to be made following careful analysis and a thoughtful balancing of interests. However, how much protection an employer can rely on by citing this obligation when responding to those who will not be vaccinated and those who refuse to work with someone who has not been vaccinated will depend on the local legal environment and the broader views of the government and community.

If I offer vaccinations to my staff, can I be held liable if something goes wrong?

It is a legitimate concern for employers to worry about assuming liabilities for any adverse effects suffered by the individual who is vaccinated. The bigger picture and over-reliance on the effectiveness of the vaccine to protect staff when it may not always work is really too difficult and complex for employers to navigate at the moment and this appears to rest at a policy level – at least for now.

While, generally, an employer should not be in the front line for liabilities due to medical procedures provided by a third party, it is clear that the lines may be blurred if the vaccine is administered by a company staff member or in countries where all health and safety responsibilities remain with the employer and cannot be outsourced. While seeking a waiver from the employee may provide some peace of mind, it may not be legally binding and operate as intended.

Concluding thoughts and some tips

The last few months have taught us all that the rule book is just not written for what we are all experiencing in real time. This is very much the case when it comes to the issue of the employers’ role and responsibilities around the COVID vaccination. Always more questions than answers, but you may at least begin the process with considering the following:

  • Legal risk – ensure you will have quick access to a risk assessment in the jurisdictions in which you operate so that you know quickly and up front what the most challenging countries are likely to be from a legal perspective.

  • Bringing your people with you – use the collective and staff communication avenues available to you to gather insights as to the attitudes to, and support of, your likely position. Leaving this until you are ready to roll out your plan is far too late!

  • Accountability – this is not a HR issue; it is a business-critical issue which will have an impact on all elements of your business. Having the right stakeholders and decision-makers in the loop as part of a consolidated team will be critical and should be happening now.

  • Process – we are not big fans of bringing legal complexity to positive workplace relationships, but this is an area where making sure that liabilities and responsibilities are addressed by clear policies and documentation, including express employee waivers, is clearly a must.

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