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HR Legal

Can companies require employees to get vaccinated against coronavirus?

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Legal news
calendar 6 January 2021
globus Sweden

Vaccination against coronavirus has been initiated in Sweden 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 Swedish Work 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 being introduced 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, in the absence of agreement, can lawfully implement a vaccination requirement as part of the managerial right, 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 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. Consequently, the companies’ interest in having the employees vaccinated would, under the current circumstances, most likely not outweigh the employees’ interest in integrity as required by Swedish case-law. This applies even if the interest in implementing a vaccination requirement as such could be considered justified.

The managerial right would therefore likely not admit implementing a vaccination requirement at the workplace. It can therefore not currently trigger consequences for employees who refuse to get vaccinated. In accordance with the rules on health information and data protection, it would, as a main rule, also be prohibited to collect information on whether employees or job applicants have been vaccinated against coronavirus in connection with employment or work. However, the Swedish Data Protection Authority has stated that the GDPR does not prevent taking measures which are necessary to reduce the spread of the coronavirus. Consequently, it could, in certain situations, be permitted to process said information. In such cases, the legal basis would most likely be articles 9 (2) (b) and 6 (1) (c) of the GDPR. The assessment may however come out differently for different groups of employees, where the scope should be larger in relation to, for example, doctors and other health professionals in critical and more exposed functions.

Irrespective of the above, companies should avoid systematic and extensive collection of health information. Companies should also be aware of the importance of limiting the access to such information and to otherwise comply with the data protection principles.

Because the possibility to implement a vaccination requirement currently can be considered as limited, both with respect to integrity and data protection, 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.

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 prevent themselves from performing their job, it may potentially be considered unlawful.

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 reassignment.

Vaccination requirements in commercial agreements

Another possible result of recent developments is the introduction of terms in commercial agreements requiring that the employees at one of the parties to the agreement must be vaccinated against coronavirus. 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 Swedish 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 could therefore be considered legally impossible to comply with and therefore unenforceable. Even for employees choosing to satisfy a vaccination requirement on a voluntary basis, companies would as a main rule 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.

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 such requirements here.

According to the Swedish Work 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 being introduced 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, in the absence of agreement, can lawfully implement a vaccination requirement as part of the managerial right, 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 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. Consequently, the companies’ interest in having the employees vaccinated would, under the current circumstances, most likely not outweigh the employees’ interest in integrity as required by Swedish case-law. This applies even if the interest in implementing a vaccination requirement as such could be considered justified.

The managerial right would therefore likely not admit implementing a vaccination requirement at the workplace. It can therefore not currently trigger consequences for employees who refuse to get vaccinated. In accordance with the rules on health information and data protection, it would, as a main rule, also be prohibited to collect information on whether employees or job applicants have been vaccinated against coronavirus in connection with employment or work. However, the Swedish Data Protection Authority has stated that the GDPR does not prevent taking measures which are necessary to reduce the spread of the coronavirus. Consequently, it could, in certain situations, be permitted to process said information. In such cases, the legal basis would most likely be articles 9 (2) (b) and 6 (1) (c) of the GDPR. The assessment may however come out differently for different groups of employees, where the scope should be larger in relation to, for example, doctors and other health professionals in critical and more exposed functions.

Irrespective of the above, companies should avoid systematic and extensive collection of health information. Companies should also be aware of the importance of limiting the access to such information and to otherwise comply with the data protection principles.

Because the possibility to implement a vaccination requirement currently can be considered as limited, both with respect to integrity and data protection, 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.

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 prevent themselves from performing their job, it may potentially be considered unlawful.

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 reassignment.

Vaccination requirements in commercial agreements

Another possible result of recent developments is the introduction of terms in commercial agreements requiring that the employees at one of the parties to the agreement must be vaccinated against coronavirus. 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 Swedish 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 could therefore be considered legally impossible to comply with and therefore unenforceable. Even for employees choosing to satisfy a vaccination requirement on a voluntary basis, companies would as a main rule 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.

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 such requirements here.

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Anders

Etgen Reitz

Partner

Franziska

Brüggemann

Associate

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