Companies face a new set of challenges as countries implement their COVID-19 vaccination plans. Covering several major jurisdictions, this Legal Update summarizes key vaccine information for employers, such as the availability of vaccines, the rights of employers to require vaccination or proof thereof and measures that could be taken against employees refusing to be vaccinated.
United States. Vaccines are available, although each state handles its vaccine distribution differently. Employers currently do not have direct access to vaccines. Employers must be mindful of different rules at the federal, state and local levels when requiring employees to be vaccinated or show proof thereof or when taking measures against vaccination refusal, and employers’ actions must not be discriminatory.
Hong Kong. Vaccinations will be controlled and provided by the government on a voluntary basis. Most employers will not be able to lawfully compel employees to take the vaccine. The vaccine is a potential additional measure employers should include in their risk assessment and when considering what reasonably practicable steps may be taken to ensure the health and safety of employees at work. Care should be taken to comply with the contract of employment and laws regarding health and safety, anti-discrimination and data privacy.
Japan. There is currently no vaccination available to the public as the clinical trials of COVID-19 vaccines are still ongoing. As a consequence, what rights, if any, that employers in Japan will have in connection with the administration of the COVID-19 vaccine remains unsettled. However, the first approval of a COVID-19 vaccine is expected in late February, and the general plan now is that certain segments of the population (such as nurses and elderly individuals) will start receiving vaccines in March or April.
United Kingdom. Vaccines from various developers are available, and a vaccination program has been running since early December 2020, starting with higher-risk segments of the population. The vaccine is not yet available commercially, so employers do not have direct access to it nor the right to require vaccination. Care must be taken if requiring employees to show proof of vaccination due to factors such as the EU data privacy law. Moreover, while it is theoretically possible for employers to take action against employees refusing to be vaccinated, employers must be mindful not to breach UK discrimination law.
France. The country began implementing its vaccination plan toward the end of 2020. The government controls the supply of the vaccine. Employers cannot require employees to be vaccinated or show proof thereof and cannot take actions against those who refuse to be vaccinated.
Germany. Vaccines are available, and more than 1 million people have been vaccinated so far. Currently, employers in Germany do not have direct access to the vaccines. It is not mandatory that employees be vaccinated, and most employers are prohibited from requiring proof of vaccination or taking measures against an employee refusing to be vaccinated.
Brazil. A few different types of vaccines are available and scheduled to be administered to the population in phases. While employers do not have direct access to the vaccines, they can require their employees to be vaccinated and disclose proof thereof. Employers can also take disciplinary measures against employees refusing to be vaccinated, though employers must be aware of factors such as employees’ reasonable justifications for refusing.
Thank you to Foreign Associates Masanari Katsumi and Nao Okada Nabae for their drafting assistance in English and Japanese.