As the COVID-19 vaccination programme is rolled out in the UAE, with over 2 million doses already administered by the end of January 2021 (WAM Agency), a question on the minds of many employers is whether their workforce should be vaccinated as a step towards operating ‘business as normal’. One would assume that employees would welcome the option of being vaccinated to protect oneself and as a step closer to end the pandemic. However, vaccine hesitancy creates a number of challenges and taking a Covid-19 vaccination is a polarising topic for many employees. How employers respond to choices around vaccinations brings into play employment law and data protection law.
As the vaccine becomes widely available, will employers have a strong case for requiring employee vaccinations?
While there is no compulsion on the public to take the vaccine in the UAE, the government issued a new directive in January 2021 compelling public sector employees (unless they are vaccinated) to undertake a PCR test every seven days commencing at the end of January 2021.
Pro-vaccine employers in the private sector are aware the availability and roll out of the vaccine potentially alters the risk profile of COVID-19 in the workplace, and are taking a similar approach as the public sector to impose either regular PCR testing or compel employees to have the Covid-19 vaccination. Employers are reviewing their COVID-19 risk assessments in relation to the vaccine, their workforce and the workplace. It seems employers will have, with some exceptions, a strong case for requiring employee vaccinations, where it constitutes a direct threat to other employees in the workplace.
Other countries are adopting a similar approach. In the United States, the Equal Employment Opportunity Commissions (EEOC) in December 2020 published guidance stating employers can require employees to get vaccinated as a condition of going to work. However, employers must consider exempting employees with disabilities and religious objections.
The position in the UK places no legal obligation on individuals to have the Covid-19 vaccination and the right to refuse medical treatment is enshrined in law. The UK Health Secretary, Matt Hancock, recently said there is currently no proposal to make vaccination a legal requirement.
Under the UK Health and Safety Act, employees may argue that the health and safety obligations of an employer is to take all reasonably practicable steps to ensure the health, safety and welfare at work of all their employees and to prevent or reduce exposure to workplace risks – not just in relation to their employees but those affected by their work activities.
The Act requires employees to cooperate with any health and safety measures implemented by their employers in compliance with their duties. Based on this, it is reasonable to say that at a minimum, employers should be encouraging their employees to be vaccinated to ensure they do not breach their health and safety duties. However, an employee refusing a vaccine is not likely to be regarded as a health and safety breach by the employee.
The context of a ‘pro-vaccine’ employer, whether in the UAE or elsewhere, is highly dependent on the type of business and sector in which it operates. For example, health care, travel and retail are industries which pose a higher risk or present a risk to others which makes a stronger business reason to promote mandatory vaccinations. Office-based businesses or businesses that can rely on remote workers may find it easier to take a “personal-choice” stance. Either way, if an employer wishes to proceed with mandatory vaccination, then the employer should demonstrate, through risk assessment, that having a vaccine is the most reasonably practicable way of reducing the risks associated with COVID-19.
Any such risk assessment should be kept under review as the roll out of the vaccine changes and understanding of the science behind the vaccine advances (including in relation to transmission risks associated with individuals who have received the vaccine).
There are also data protection considerations around vaccinations and the sensitive nature of health-related information.
If an employer requires employees to inform them if they have or have not received the vaccine, it is important to check your data protection policies and privacy notices to handle this sensitive area. Disclosure of medical notes is protected under data protection laws and may only be released with consent of an employee.
What will happen if an employee refuses to have a Covid-19 vaccination?
The downside of employers enforcing a vaccination policy in the UAE’s private sector, may leave some employees, who err on the side of personal choice, to refuse the vaccine and choose to no longer work for the employer. If an employee chose this particular course and decides to pursue financial remedy against the employer, the UAE employment law currently offers limited legal recourse . A successful labour claim would attract a capped compensatory award and ultimately the employee may face a similar situation when moving to a new employer, where a mandatory vaccination policy is in force.
Employers should be prepared to engage in an interactive process and adopt fair practices to ensure employees responses are understood prior to imposing a blanket policy on vaccination.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.