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HR Legal

Can companies require employees to get vaccinated against coronavirus?

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Legal news
calendar 20 December 2020
globus Denmark

Vaccination against coronavirus will soon be initiated in Denmark and the rest of the EU, triggering a series of new questions for companies. Especially one question needs clarification, and it is whether companies can require employees to get vaccinated against coronavirus in order to work or go on business trips. At the same time, the question on which consequences it can have if an employee refuses to get vaccinated also needs to be addressed.

According to the Danish Working Environment Act, companies must ensure a healthy and secure working environment. This also implies a duty to prevent employees from getting infected with coronavirus. Preventing infection outbreaks at the workplace is of course also in the companies’ best interest economically.

As a vaccine is expected to be approved earlier than first anticipated, the question of whether companies can require vaccination at the workplace is interesting. The same applies as to whether it may lead to termination, if an employee refuses to get vaccinated and consequently is prevented from going on business trips or performing work assignments for one or multiple clients.

Vaccination requirement at the workplace

An offer to get vaccinated has usually been considered a fringe benefit. However, the current rules do not provide that companies can require employees to get vaccinated – neither with respect to the normal flu, coronavirus nor other types of viruses. The question is therefore if companies as part of the managerial right or the Danish Working Environment Act can justify a vaccination requirement, and whether it can ultimately lead to termination for employees who refuse to comply.

A vaccination requirement is an extensive intervention with respect to the employees’ integrity and privacy from the companies’ side. It has not yet been confirmed as necessary to introduce vaccination requirements and that measures as remote working, social distancing and good hygiene should not be adequate to prevent infection at the workplace. As a starting point, a vaccination requirement is therefore unlikely to have the necessary justified basis. Additionally, such a requirement would not be in proportion to the prevention of the potential economic consequences of infection outbreaks at the workplace or securing employees against infection as required by the Danish Working Environment Act.

Neither the managerial right nor the Danish Working Environment Act would therefore likely justify a vaccination requirement at the workplace. It can therefore not currently trigger consequences for employees who refuse to get vaccinated. In the same manner, it would be unlawful under the current rules on health information and data protection to ask employees or job applicants whether they have been vaccinated against coronavirus in connection with or as a condition for employment or work. This assessment is of course different for specific groups of employees, such as doctors and other health professionals in critical functions.

Because the introduction of special measures towards employees who refuse vaccination would require companies to obtain health information, companies should instead consider more general measures such as continued recommendations on working from home or increased social distancing between employees, regardless of whether they have been vaccinated. This is because the Danish Health Information Act and the applicable data protection rules contain strict requirements on the processing of health information.

Can companies require vaccination with respect to business trips?

Currently the expectation is that many countries and airline companies will require proof of vaccination as a condition for entry. If an employee refuses to get vaccinated the consequence may therefore be that the employee is in fact prevented from going on business trips or performing certain work assignments.

It’s unclear if companies can require employees to get vaccinated to go on a business trip. But, if employees refuse to get vaccinated and de facto prevents themselves from performing their job, it may potentially be considered as unlawful or self-inflicted absence.

It can therefore not be excluded if refusal to get vaccinated could justify termination of an employee who is prevented from performing the work. Companies should, however, have clear policies in place and usually also have attempted to find alternatives beforehand, such as other assignments.

Vaccination requirements in commercial agreements

The introduction of terms in commercial agreements requiring that the employees at one of the parties to the agreement must be vaccinated against coronavirus must considered natural. Either as a separate requirement to the agreement or as part of an HSE policy to be followed.

Although vaccination requirements in commercial agreements may be enforceable in some countries, it’s uncertain if Danish companies can be bound by such terms, seeing that in many cases companies will be prohibited from enforcing such a requirement against the employees. The term would therefore be legally impossible to comply with and therefore unenforceable. Even for employees choosing to satisfy a vaccination requirement on a voluntary basis, companies would be prevented from obtaining information hereon under the current rules and would therefore have difficulty guaranteeing or otherwise enforcing such a term towards the customer.

IUNO’s opinion

Companies cannot currently require that employees must get vaccinated against coronavirus and should instead settle for a recommendation on vaccination. However, with the new Act allowing companies to require employees to get tested for coronavirus and to obtain the test result, companies should in many cases be able to secure both the working environment and provide adequate guarantees with respect to commercial agreements.

IUNO recommends that companies seek legal advice before implementing measures, and at worst decisions on termination of an employee refusing vaccination. This also applies before companies implement requirements upon employees to get tested for coronavirus. We have previously taken a closer look at these new requirements here.

According to the Danish Working Environment Act, companies must ensure a healthy and secure working environment. This also implies a duty to prevent employees from getting infected with coronavirus. Preventing infection outbreaks at the workplace is of course also in the companies’ best interest economically.

As a vaccine is expected to be approved earlier than first anticipated, the question of whether companies can require vaccination at the workplace is interesting. The same applies as to whether it may lead to termination, if an employee refuses to get vaccinated and consequently is prevented from going on business trips or performing work assignments for one or multiple clients.

Vaccination requirement at the workplace

An offer to get vaccinated has usually been considered a fringe benefit. However, the current rules do not provide that companies can require employees to get vaccinated – neither with respect to the normal flu, coronavirus nor other types of viruses. The question is therefore if companies as part of the managerial right or the Danish Working Environment Act can justify a vaccination requirement, and whether it can ultimately lead to termination for employees who refuse to comply.

A vaccination requirement is an extensive intervention with respect to the employees’ integrity and privacy from the companies’ side. It has not yet been confirmed as necessary to introduce vaccination requirements and that measures as remote working, social distancing and good hygiene should not be adequate to prevent infection at the workplace. As a starting point, a vaccination requirement is therefore unlikely to have the necessary justified basis. Additionally, such a requirement would not be in proportion to the prevention of the potential economic consequences of infection outbreaks at the workplace or securing employees against infection as required by the Danish Working Environment Act.

Neither the managerial right nor the Danish Working Environment Act would therefore likely justify a vaccination requirement at the workplace. It can therefore not currently trigger consequences for employees who refuse to get vaccinated. In the same manner, it would be unlawful under the current rules on health information and data protection to ask employees or job applicants whether they have been vaccinated against coronavirus in connection with or as a condition for employment or work. This assessment is of course different for specific groups of employees, such as doctors and other health professionals in critical functions.

Because the introduction of special measures towards employees who refuse vaccination would require companies to obtain health information, companies should instead consider more general measures such as continued recommendations on working from home or increased social distancing between employees, regardless of whether they have been vaccinated. This is because the Danish Health Information Act and the applicable data protection rules contain strict requirements on the processing of health information.

Can companies require vaccination with respect to business trips?

Currently the expectation is that many countries and airline companies will require proof of vaccination as a condition for entry. If an employee refuses to get vaccinated the consequence may therefore be that the employee is in fact prevented from going on business trips or performing certain work assignments.

It’s unclear if companies can require employees to get vaccinated to go on a business trip. But, if employees refuse to get vaccinated and de facto prevents themselves from performing their job, it may potentially be considered as unlawful or self-inflicted absence.

It can therefore not be excluded if refusal to get vaccinated could justify termination of an employee who is prevented from performing the work. Companies should, however, have clear policies in place and usually also have attempted to find alternatives beforehand, such as other assignments.

Vaccination requirements in commercial agreements

The introduction of terms in commercial agreements requiring that the employees at one of the parties to the agreement must be vaccinated against coronavirus must considered natural. Either as a separate requirement to the agreement or as part of an HSE policy to be followed.

Although vaccination requirements in commercial agreements may be enforceable in some countries, it’s uncertain if Danish companies can be bound by such terms, seeing that in many cases companies will be prohibited from enforcing such a requirement against the employees. The term would therefore be legally impossible to comply with and therefore unenforceable. Even for employees choosing to satisfy a vaccination requirement on a voluntary basis, companies would be prevented from obtaining information hereon under the current rules and would therefore have difficulty guaranteeing or otherwise enforcing such a term towards the customer.

IUNO’s opinion

Companies cannot currently require that employees must get vaccinated against coronavirus and should instead settle for a recommendation on vaccination. However, with the new Act allowing companies to require employees to get tested for coronavirus and to obtain the test result, companies should in many cases be able to secure both the working environment and provide adequate guarantees with respect to commercial agreements.

IUNO recommends that companies seek legal advice before implementing measures, and at worst decisions on termination of an employee refusing vaccination. This also applies before companies implement requirements upon employees to get tested for coronavirus. We have previously taken a closer look at these new requirements here.

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Anders

Etgen Reitz

Partner

Søren

Hessellund Klausen

Partner

Kirsten

Astrup

Associate

Cecillie

Groth Henriksen

Associate

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The team

Akina

Ørum Masaki

Legal assistant

Anders

Etgen Reitz

Partner

Caroline

Wochner

Communication assistant

Cecillie

Groth Henriksen

Associate

Franziska

Brüggemann

Associate

Kirsten

Astrup

Associate

Nora

Tägtgård Coter

Legal assistant

Sofie

Aurora Braut Bache

Associate

Søren

Hessellund Klausen

Partner