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Can my employer make me get a COVID-19 vaccine?

by Sonia Elks | @SoniaElks | Thomson Reuters Foundation
Friday, 8 April 2022 10:00 GMT

A woman receives a vaccination at a hospital in Shanghai, China, 3 November 2018. Oriental Image via Reuters

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Some companies and governments are pushing their staff to get vaccinated. But lawyers say forcing employees to get a COVID jab could be risky

By Sonia Elks

April 8 (Thomson Reuters Foundation) - A U.S. appeals court panel on Thursday reinstated President Joe Biden's executive order mandating that federal civilian employees be vaccinated against COVID-19.

Biden said in September he would require about 3.5 million government workers to get vaccinated by Nov. 22, barring a religious or medical accommodation, or face discipline or firing

The news comes as companies around the world pressure their employees to get the jab, with the Omicron variant causing a surge in cases and mass staff absences.

Some firms are imposing rules requiring or nudging workers to get the vaccine while others are letting their staff go unvaccinated. In some cases, businesses are also being ordered by governments to impose vaccine mandates on employees.

"If you'd been asking me six months ago, did I think that mandatory vaccination (at work) is something that we'd see, I would have been saying 'no'," said Kim Sartin, a London-based partner at international legal firm Baker McKenzie, in an interview late last year.

"But it's interesting how things have really evolved."

Here's the background – and whether your employer can require a jab to work.

The background:

Dozens of countries are offering COVID-19 vaccines for all adults. 

But uptake in many nations is stalling, with a significant minority of people expressing doubts and online misinformation spreading conspiracy theories.

In Russia, more than a third of adults are vaccine skeptics, followed by 27% of Americans and 17% of Germans, according to a tracker of 15 countries by data firm Morning Consult.

That creates an issue for employers, with unvaccinated employees posing a risk not only to themselves but to colleagues and customers or service users.

What are employers doing?

Some employers have said staff must get a jab as a condition on their employment. In many cases, they have been ordered to do so by governments.

Italy, France and Britain are among many countries to impose vaccination orders for workers in the health or care sector, while Moscow is requiring jabs for public-facing workers from teachers to hairdressers.

A small number of employers have said they will demand vaccines for all workers, even when not required to do so by officials. For example, a British plumber announced it was looking to bring in a "no jab, no job" rule for new hires.

Others are trying to exert pressure by demanding proof of vaccination to enter the office, or by cutting discretionary extra COVID-19 benefits for the unvaccinated.

For example, Canada's five biggest banks require employees working from their offices to be fully inoculated.

In Britain, both Morrisons and IKEA bosses said some unvaccinated workers were no longer getting full company sick pay if they had to self-isolate after coming into contact with someone who has the virus. People who have been jabbed do not have to self-isolate.

Prime Minister Boris Johnson has said he does not intend to renew laws on self-isolation when they expire at the end of March, and may scrap the requirements sooner.

And Kroger Co, which is among the biggest employers in the United States, also announced it will stop some COVID-19 benefits for unvaccinated employees this year.

Have similar vaccine mandates happened before?

Officials have required vaccinations for centuries.

As far back as 1777, George Washington ordered all Continental soldiers to get a smallpox jab, a decision many historians think played a key role in the colonists' victory and the creation of the United States. 

Some health and care facilities already require workers to get jabs. For example, many U.S. hospitals require staff to have the flu shot.

However, most modern vaccine mandates are applied to children as opposed to workers.

Introducing blanket vaccine mandates should be an "absolute last resort", the World Health Organization's top Europe official Hans Kluge has said, warning that such rules may not always be acceptable to the public or effective in ensuring uptake.

A vial of the Moderna coronavirus disease (COVID-19) vaccine is seen at a vaccination center in Le Cannet, France, January 19, 2021. REUTERS/Eric Gaillard

So can my boss make me get a vaccine?

That depends significantly on both local laws and the details of a company's vaccination rules, said Sartin.

On the whole, companies carrying out vaccine mandates in response to official orders "should be fairly low risk" from legal challenges, she said.

In contrast, companies acting on their own initiative to demand staff get vaccinated as a condition of employment are quite rare and are "really going out on a bit of a limb to be able to justify why they're doing that", she said.

"Is this a reasonable management instruction to say 'You must be vaccinated in circumstances where the government is not mandating it?' And you're not in a high risk sector? That's where I think there will be more challenges."   

What about requirements for COVID-19 vaccines to enter the office?

Many employers that are not subject to official mandates are taking a middle ground by requiring proof of vaccination in order to come into the office - while allowing the unvaccinated to continue to work from home. 

Workplaces dealing with medically vulnerable people or in jobs such as film sets where people are required to be in close contact are more likely to have a strong case for requiring COVID-19 passes, she said.

Bosses must also ensure they offer reasonable accommodations on the basis of disability, pregnancy and religion.

That part can be hard to manage in practice, said Sartin, who has heard about companies which are struggling to handle demands for religious opt-outs.

But generally, she said workplaces were taking a slow and steady approach, she said.

"Employers are very mindful of attrition, making sure that they can retain their staff and that staff feel safe."

A medical worker fills a syringe with Chinese Sinopharm vaccine for Serbian Army officers as country begins mass vaccination for the coronavirus disease (COVID-19), in Belgrade, Serbia, January 19, 2021. REUTERS/Marko Djurica

What will happen next?

As many companies bring staff back into the workplace, businesses will likely have to make more decisions weighing people's personal rights against public safety.

Governments are increasingly moving to allow COVID-19 passes to be used to access public space, said Sartin, bolstering the case for workplace rules.

Court challenges are also starting to clarify the law. These include the current U.S. case, and two unsuccessful challenges to the European Convention of Human Rights against key worker mandates in France and Greece. 

"I think we're at the beginning ... we will be seeing more cases," said Sartin.

This article was updated on April 8, 2022, with a U.S. appeals court reinstating President Joe Biden's vaccine mandate.

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(Reporting by Sonia Elks; additional reporting by Jack Graham and Emma Batha. Editing by Tom Finn and Kieran Guilbert. Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers the lives of people around the world who struggle to live freely or fairly)