COVID-19 vaccine: Can employees be forced to take them?

With the first COVID-19 vaccine being rolled out and further vaccines not far behind, many businesses are considering whether they can force their employees to be vaccinated and fast-track their return to ‘normal’.

Can employers insist their employees be vaccinated to reduce the risk of workplace infection and ensure business continuity?

The answer, as with most legal questions, is “it depends”.

Critical factors

Factors that can influence an employer’s powers and obligations include the particular circumstances of the workplace and the employee’s role, existing legal requirements specific to the jurisdiction and relevant case law.

“Unfortunately, given the novelty of COVID-19, we don’t have a lot of dedicated legislation or case law to give us definitive answers to these questions,” said Baker Tilly Germany’s lead partner of international employment law, Jacob Keyl.

“We must therefore look to basic principles in relation to employment, health and safety and to the decisions courts have taken in relation to similar preventative measures, such as the wearing of masks.

“As always, our final advice will vary between countries – and even between states and territories – as it is subject to the different legal requirements of each jurisdiction.”  

The following are some examples of the range of legal positions regarding forced vaccination around the world – and they demonstrate the importance of businesses obtaining advice specific to their own operations.

No – Germany

In Germany, a legal obligation to be vaccinated only applies to measles and is limited to a specific category of employees, primarily those working in health care environments such as hospitals and medical practices.

These employees must submit a certificate of vaccination to work in the specified facilities and may be dismissed if they refuse to meet this obligation.

This very limited compulsory vaccination is required under the German Measles Protection Act, which came into force in March 2020.

However, there is currently no statutory compulsion to vaccinate against COVID-19 and employers cannot require their employees to get vaccinated. This would not fall within the employer’s right to give instructions under the German Industrial Code.

“There is an argument that an employee has a fiduciary duty to their employer and colleagues to get vaccinated to protect them against infection,” Mr Keyl said.

“But even this does not support compulsory vaccination as employers have other, less drastic options to protect their staff including general infection protection measures relating to hygiene, distance and behaviour or the provision of a voluntary corporate vaccination program.

“Employers can also create a financial incentive for employees to get vaccinated, in the form of ‘vaccination bonuses’.

“But an employee’s refusal to get vaccinated can under no circumstances provide a basis for consequences under labour law, such as a warning letter or even dismissal.”

Maybe – Northern Ireland and UK

Health & Safety at Work Act (HSWA) UK and the Northern Ireland Health & safety at Work Act (1974) requires employers to take all reasonable steps to reduce workplace risks to their lowest practicable level.

It is arguable that provision of an effective vaccine, if available, would fall under the measures required by that obligation.

In England and Wales, the Public Health (Control of Disease) Act 1984 gives the government powers to prevent, control or mitigate the spread of a contamination, but it explicitly prevents a person from being required to undertake medical treatment. This law has been extended to the devolved nations of Scotland and Northern Ireland via the Coronavirus Act 2020.

The Health and Safety at Work Act 1974 (“the Act”) requires employers to take reasonable steps to reduce workplace risks. Under the Act, employees also have a duty to cooperate with their employer to reduce workplace risks. It follows that a reasonable step to reduce the risk of COVID-19 in the workplace could be to require employees to take the vaccine, as immunisation of employees will allow for a return to ‘normal’ in the workplace.

If an employer carried out a risk assessment and concluded that having a vaccine is the most reasonably practicable way of controlling the risk of COVID-19 then, in theory, they could order the vaccination as a health and safety requirement.

Given that the government is not making the vaccination mandatory, the employer would be able to argue that this control measure is a best practice measure rather than a reasonably practicable one.

On that basis, it would also suggest that any refusal to get a vaccine would not amount to a health and safety breach.

Maybe – Australia

In Australia, the Prime Minister’s statement that a COVID-19 vaccine would be “as mandatory as you could possibly make it” has sparked debate about the potential for federal legislation to mandate vaccination against the coronavirus.

In the absence of such legislation, the ability of government or employers to force vaccinations is unclear and can vary between States and Territories depending on the public health and occupational health and safety laws in each jurisdiction.

Under public health laws in some States and Territories, people can be forced to undergo medical examination, testing and treatment without their consent if it is required to address a public health issue.  However, there may be a question as to whether vaccination can be considered a ‘treatment’ for these purposes.

Some occupational health and safety laws also allow employers to require particular workers to obtain vaccination certificates as a condition of employment, particularly in environments of greater health risk such as hospitals.

A recent unfair dismissal case before the Fair Work Commission considered whether a childcare centre could give a “lawful and reasonable” direction to its employees to receive a flu vaccination.

The merits of the case were only considered briefly, with the application dismissed for being out of time. However, in his judgment, Fair Work Commission Deputy President Asbury concluded it was arguable that the employer’s requirement for vaccination was lawful and reasonable.

“Prima facie, the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/pr medical conditions,” he said.

Other cases before the Fair Work Commission relating to compulsory flu vaccination may provide further clarification on this point.

No – New Zealand

It is anticipated that distribution of coronavirus vaccines in New Zealand will not occur until the second quarter of 2021.

The Ministry of Health has already indicated that vaccination will not be mandatory and under current legislation it is very unlikely employers will be able to make vaccination compulsory for their employees.

However, the door is open as to whether employers could present compelling reasons that vaccination is the only reasonable option to protect employees and others in high risk environments after all other options have been considered. Any arguments along these lines are likely to be tested.

“Employers would not want to make vaccination compulsory for their employees if there was any risk of complications and/or legal action arising from it,” says Chris Wright, Head of HR at Baker Tilly Staples Rodway Auckland.

“We are still awaiting Medsafe (the Government agency that licenses medicine) clearance on the vaccines coming into New Zealand. Employers are also conscious of the New Zealand Bill of Rights Act 1990 which states that ‘everyone has the right to refuse to undergo any medical treatment.’

“This leaves open the question of what the consequences will be for an employee who refuses to be vaccinated.

“The advantage we have is that by the time the vaccine is being rolled out in New Zealand, we will have more detailed information on the effectiveness of the vaccine (and any reaction to it) based on six months of use in the United States, the UK and Europe.

“We will also see what case law around mandatory immunisation is established in the United Kingdom (where the issue is more urgent) and Australia who have very similar health and safety legislative requirements.”

Irrespective of the legalities, the case for vaccination is in itself compelling – reducing the risk of spread to friends and family, risk to businesses, the economic consequences of COVID-19 lockdowns, reduced access to public places and potentially the inability to travel offshore, unless it has been administered.

Can employers stop their employees from getting the COVID-19 vaccine?

While there is no definitive case law on a COVID-19 vaccine, there is a case on foot in the United States which may give some guidance on employer obligations regarding anti-coronavirus measures.

In a suit filed in late November, the family of a Miami supermarket worker who died from COVID-19 complications is suing his employer for banning face masks and gloves despite the inability of workers to socially distance as urged by the Centers for Disease Control and Prevention.

The suit claims employees were told they could not wear masks or gloves because it would “incite panic” and they could either “work without a mask or go home”.

So what next?

Given the substantial social and economic impact of the COVID-19 pandemic, it appears widespread vaccination in the shortest possible period is in the broader public interest.

Many employers will be motivated to achieve a fully-vaccinated workforce to speed up the return to “business as usual”. However, like everything else relating to the coronavirus, the legal situation around compulsory vaccination is complex and fast-moving.

We strongly recommend that all employers considering mandatory vaccination as a condition of employment seek legal advice specific to their jurisdiction and workplace.