Some companies are pushing their staff to get vaccinated. But lawyers say forcing employees to get a COVID jab could be risky
By Sonia Elks
Nov 9 (Thomson Reuters Foundation) - Rules requiring millions of workers in the United States to get a COVID-19 vaccine or weekly tests from January have been put on hold after the nationwide mandate on large private firms ran into legal challenges.
As businesses around the world seek to recover from the pandemic's impact, some firms are imposing rules requiring workers to get a COVID-19 jab while others are letting their staff go unvaccinated.
In some cases, companies 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.
"But it's interesting how things have really evolved."
Here's the background – and whether your employer can require a jab to work.
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.
As a small business owner who employs 200 people, grew up in an anti-vax household and didn't get any shots until my 20s ...— Dan Price (@DanPriceSeattle) September 10, 2021
I am totally OK with the requirement for employees to get vaccinated or tested.
Ending the pandemic is the best thing for employee safety and business.
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.
The U.S. mandate - which was blocked by a federal court and is now headed for an appeal hearing - requires private companies with 100 or more workers to order staff to be vaccinated or undergo weekly COVID-19 tests.
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. For example, Canada's five biggest banks require employees working from their offices to be fully inoculated.
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.
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?
Most 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."
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 19 November 2021 with the latest developments over United States rules on vaccines for workers at large private companies.
(Reporting by Jack Graham; additional reporting by Sonia Elks 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)
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