COVID-19: employment law considerations regarding employers requiring employees to take tests and the option of vaccination

By Søren Narv Pedersen, Mia Boesen, Pia Skovgaard Hansen

01-2021

Bird & Bird has previously issued a newsletter regarding employers options of requiring that employees take a COVID-19 test. With the new, upcoming vaccine, the question arises whether employers can require that employees get vaccinated.

The corona pandemic and the challenges it has created has meant that employers in all types of industries have had to adjust their working procedures on an ongoing basis as new and different questions arise as a result of the pandemic. The same applies now, as we face new questions in relation to tests and possibly also the vaccination of employees.

Bird & Bird has collected our considerations on some of the most typical questions below.

Can I force my employees to take a test for and get vaccinated against COVID-19?

If you as an employer has a factual reason thereto, you may with legal basis in the new legislation require that your employees take a test for COVID-19. At this point, the new legislation, however, does not include vaccination.

At Bird & Bird, we find it doubtful that the Danish Government will adopt general provisions that provide employers with the possibility to instruct employees to get vaccinated. In our opinion, this would be a provision which is far to radical and which reaches beyond the limits of the legislation on management.

Whether employees in the most exposed positions, such af physicians, nurses and other healthcare staff, can be instructed to get a vaccination is, however, another assessment, and it is relevant to see if the vaccination program becomes mandatory for these groups of persons.

Can it have any employment law consequences, if an employee refuses to take a test for or get vaccinated against COVID-19?

If an employer with legal basis in the legislation instructs the employees to take a test for COVID-19 and the employer further complies with the requirements of written information etc. pursuant to the legislation, it may have employment law consequences for the employee or employees who do not meet the requirement.

As regards situations where employees do not want to get vaccinated against COVID-19, the employer cannot, as a general rule, decide to let this decision have any employment law consequences for the employee or employees in question.

The challenge in such situations is that the employer on one side is obligated by the health and safety at work act to ensure a safe and healthy working environment for all employees, whereas the employees who do not want the vaccination may have various health reasons, religious reasons or other reasons not to get vaccinated which may entail that the employees are protected against discriminatory treatment. There may be a risk of discriminatory treatment, if the employer decides that the refusal to get vaccinated will have employment law consequences.

Another aspect which the employer must consider, both as regards the requirement of tests but also in relation to vaccination, is the HR aspect. It may be worth considering if the reputation of the business may be damaged, if the employer decides on too extensive measures.

Can I isolate employees who choose not to get vaccinated from the rest of the employees?

As described above, the employer has a working environment obligation to ensure a safe and healthy workplace. Just as with the current rules, the employer is responsible for ensuring, to the greatest extent possible, that the employees avoid being infected by COVID-19 in the workplace.

If one or several employees choose not to get vaccinated against COVID-19 and this causes an increased risk of these becoming seriously ill or increases the risk that these employees infect other employees with COVID-19, the employer may, according to the current rules, with regards to the operation of the business e.g. request or instruct the employees to work from home (if possible) and ensure that it is possible to keep a distance and observe the recommendations on hygiene etc.

It is our recommendation that this must takes place in cooperation with the employee/employees in question and e.g. the safety representative to ensure the best possible solution for both the employer and the employee(s).

If I offer vaccines to my employees, can I then be held liable if my employees become sick from the vaccine?

For several years, it has been popular for employers to offer their employees an influenza vaccination. The offer has been voluntary, and the individual employee must then decide to accept or refuse the offer of a vaccine.

The same constellation may be possible when the COVID-19 vaccine becomes available in the extent that is becomes possible and permitted to offer the vaccine in a private business. As with the influenza vaccine, the employer cannot be held liable for any adverse effects the vaccine may have. The responsibility for any effects lies with the pharmaceutical company producing the vaccine.

Prior to the vaccine, the employees must, however, be informed of any known adverse effects and the risks involved with the vaccination. If an employee becomes sick from the vaccine, the employee has the same rights to e.g. full pay during sick leave (if the employee is a salaried employee) as if the employee was suffering from an “ordinary” sickness.

Summary and pieces of advice

In conclusion, we do not expect that it will become possible for employers to require that employees get vaccinated against COVID-19, just as it is possible to require employees to take a test.

Instead, the employer can offer the employees to get vaccinated and that way reduce the risk of infection in the workplace to the extent it becomes possible and permitted to offer the vaccine in a private business. It may be necessary to introduce specific measures for the employee or employees who decide not to get vaccinated – neither at the employer nor through the public system. These employees should e.g. (continue to) work from home, work in the early and/or late hours of the day to avoid public transport in the rush hour, have hand sanitizer available and must be able to keep a distance.

From an employment law point of view, it is recommendable to keep your employees informed on all general initiatives in the business to ensure their safety and health. This is relevant both in a time of crisis as this, but also when the working day hopefully returns to normal.