If 2020 is the year of COVID-19, 2021 is likely to be the year of the COVID-19 vaccination. The law on COVID-19 vaccines in the workplace is still undeveloped. Infact, in most countries, it is too soon for statutory mandates or case law precedent yet. COVID-19 vaccines have been in the news constantly, and employment lawyers world over have already started advising their clients about the workplace ramifications.
The Indian government has recently approved vaccines from Bharat Biotech and Oxford / AstraZeneca. Indian states including Delhi and Maharashtra have started preparation for vaccination, with the firm shots to be given very soon. Meanwhile, the Indian Ministry of Health and Family Welfare has released certain FAQs on COVID-19 vaccines on 17th December 2020, which confirm that vaccination for COVID-19 will be voluntary. The Ministry goes on to advise to “receive the complete schedule of COVID-19 vaccine for protecting one-self against this disease and also to limit the spread of this disease to the close contacts including family members, friends, relatives and co-workers.”
Elsewhere, the European Medicines Agency (EMA) approved on 21st December, 2020, a week ahead of schedule, the vaccine developed by Pfizer and BioNtech, although the journey of COVID-19 vaccination is still at a nascent stage in many parts of the world in terms of general vaccination timelines. European countries like France and Germany are expecting a first delivery of the vaccine soon. Meanwhile, in the US, over one million people have already been vaccinated and the number is being tracked on a daily basis just like the Covid cases. The Equal Employment Opportunity Commission (EEOC) of the US has issued guidance regarding COVID-19 vaccines and the interaction with disability and EEO laws. The EEOC has acknowledged that employers may mandate vaccinations, but they need to ensure that their policies and procedures do not implicate the Americans with Disabilities Act (ADA).
HR managers are keenly awaiting the vaccine and tracking the developments closely, as the COVID-19 pandemic in India eases and as vaccines will soon become available, since they need to prepare for gradual re-opening of offices in 2021. Keeping in mind the employer’s duty of care obligations, employers will have a keen interest in allowing only vaccinated employees and visitors into the office premises, hoping that the vaccination will keep the individuals in the workplace as safe as possible.
We have listed down the employment related FAQs in relation to COVID-19 vaccination for the employees.
- Can an employer in India mandate a COVID vaccine?
No. Currently and in absence of any regulatory or government-imposed rule or requirement, it is not legally possible for the employer to mandate a COVID vaccine to the employees.
- If employers cannot mandate, is there the potential for legislation that will allow such a mandate?
Going by the above-mentioned Indian Ministry of Health and Family Welfare FAQs, it currently seems unlikely that the government will promulgate any such legislation. Infact, any such legislation may need to also be considered from the constitutionality perspective. Also, the practical challenges surrounding vaccination for a highly populated and labour-intensive country like India needs to be considered by the government.
- Can an employer ask an employee to share information on whether and where he/she has been vaccinated?
Yes, that should be possible from an employment law standpoint and given the employee’s duty of care obligations. The FAQs suggest that the vaccinated individual may receive an official SMS communication and QR code confirmation from the authorities regarding the status of vaccination. However, an individual’s ‘medical records’ and ‘heath conditions’ are categorized as sensitive personal data or information (SPDI) as per our data privacy rules and hence the employer must comply with the data privacy requirements including obtaining employee consent.
- In absence of a legal mandate, what are legal ways an employer can encourage COVID vaccination for its employees?
The employer may encourage employees for COVID vaccination by various ways including spreading awareness through training and posters, organizing medical camps, providing paid time off / leave (in case of any immediate side-effects), providing medical insurance cover for any future side-effects, subsidizing the cost of vaccination, providing incentives or gifts, prohibit official travel, set personal examples, etc.
- Can an employer refuse to let employees on-premises without showing proof of vaccination? Can the employer implement a denial-of-entry-without-vaccine rules?
Yes. However, for those employees who are not vaccinated, it is up to the employer to continue to have them work from home. In cases where an employee can provide cogent medical reasons as a potential risk to such vaccination, the employer may need to consider the feasibility of having such employees working from home.
- Similarly, can the employee lawfully refuse to come to office since he/she has not been vaccinated?
It may not be possible for an employee to refuse to come to office on the basis of not being vaccinated, if working from office is a condition of service. The employee may however request and the employer may in limited circumstances (such as medical reason) continue to allow the employee to work from home.
- Could the employer be held liable if it requires employees to be vaccinated and there are medical complications for the employee down the road from the vaccine?
As noted above, the employer may not currently be able to mandate vaccination for the employees. If the employer requires the employees to obtain the vaccination and it leads to any complications for the employee in the future, it remains to be seen if such employee can hold the employer liable. The company may be able to defend on the grounds that the mandate is based on law / government order and that it is only implementing the same, if there are any such government mandates in the future. In this context, it may be better to make the vaccination voluntary and incentivise employees to get vaccinated.
- What about employees who cannot be vaccinated due to a medical history or condition?
There may not be any clear answers to such a question and it may need to be evaluated on a case-by-case basis by the employer with the help of medical advisors. It remains to be seen whether India remains silent or issues any guidance in this regard like in the EEOC in US.