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EACCNY Labor Post-Pandemic Series | COVID-19 Vaccination in the EU and the U.S.: The Employer Perspective

With the help of our members, we are creating a Thought-Leadership series on the impact of COVID-19 on Labor & Employment from the perspective of both sides of the Atlantic. Today, we present Jessica X. Rothenberg, Associate at TROUTMAN PEPPER LLP in New York, NY, along with Dr. Tobias Polloczek, Partner & Dr. Justus Redeker, Associate both at CMS HASCHE SIGLE in Frankfurt, Germany, who will address “COVID-19 Vaccination in the EU and the U.S.: The Employer Perspective.” |


As COVID-19 vaccination roll-outs become more widespread in the United States and the European Union, employers should proactively consider the impact of vaccinations on return to work policies and practices.  The extent to which employers are allowed to dictate vaccination policies varies by country, and the practical approaches employers are taking also varies by country.  This article discusses key aspects of the legal landscape for workplace vaccination policies in the U.S. and the EU,[1] as well as important practical considerations.  For more details on the legal situation regarding vaccination and testing in the individual EU member states, please also see the recently published “CMS Expert Guide to vaccination and testing for employers.”

Can Employers Require Employees to Be Vaccinated?

EU:  In general, employers cannot make the COVID-19 vaccination compulsory.  As a result, getting a vaccination cannot be a condition of employment.  In Italy, however, with Article 4 of Decree-Law no. 44 of 1 April 2021, the Italian government introduced compulsory COVID-19 vaccination for health professionals and health care workers who carry out their activities in the following areas: public and private health, social and health care facilities, pharmacies and para pharmacies, and professional practices.  In certain other countries like Belgium, France, Poland and Slovakia, an employer can generally require employee vaccinations in certain limited sectors, and for specific employees (e.g. medical sector).  However, as of today, the COVID-19 vaccination is not one of those vaccinations.  Due to the very dynamic situation, employers should keep a close eye on developments in this regard.

U.S.:  Subject to state or local regulations that provide otherwise, employers can implement mandatory vaccination policies for employees.  However, employers must make exceptions to such a policy in two scenarios: (1) an employee has a disability which prevents him/her from getting the vaccine; and/or (2) an employee holds a sincerely held religious belief that prevents him/her from getting the vaccine.  If an employee demonstrates a disability or a sincerely held religious belief, the employer must engage in the interactive process with the employee to determine whether there is a reasonable accommodation that would allow the employee to continue working without being vaccinated.  Such an accommodation could include allowing the employee to continue working remotely, moving the employee to a closed-door workspace, and/or changing the employee’s hours so that the employee is in the workplace during less-populated times.  Employers must engage in a good faith interactive process with the employee, and should ensure all conversations and decisions are well considered and documented.  While employers can implement mandatory vaccination policies, most employers have chosen not to, and are instead actively encouraging employees to get vaccinated, but not requiring it.

Can Employers Offer Incentives For Vaccinations?

EU:  Apart from offering the vaccination during working hours and then counting it as working time, employers in most EU countries are not allowed to provide financial incentives to employees, as this could be considered health-related discrimination.  In Germany, an employer can provide incentives to encourage vaccinations (e.g. one-time bonus, additional holidays, etc.).  The incentive must be moderate so that employees can make a voluntary decision for or against vaccination.  Work councils may claim co-determination rights in this situation.

U.S.:  Some U.S. employers are offering incentives to encourage vaccination – such incentives range from small items like water bottles to gift cards to additional paid time off.  Employers who wish to offer such incentives should carefully consider whether to offer the benefit to all employees.  Offering the benefit only to employees who receive the vaccine carries the risk that an employee who does not get vaccinated, and thus does not receive the benefit, claims that they were unfairly treated.  Employers have different options for how to approach this issue – one option is to publicize the incentive as linked to vaccination, but in practice, if an unvaccinated employee asks for the benefit, the employer grants it.  Another approach is to offer the incentive to unvaccinated employees if they earn it another way, such as attending a COVID-19 training during working hours.  When considering incentives, employers should carefully assess whether it has an impact on other areas, such as wage and hour practices (for example, inclusion in the regular rate) and HIPAA’s nondiscrimination requirements (which can apply if the vaccine is paid for by the employer’s existing medical plan).  If employers implement vaccine incentives, they should be careful to only request and receive vaccination cards as proof, and ensure that employees do not inadvertently provide any additional medical information.

What Kind of Duty and/or Liability Can Employers Have Related to Vaccinations (or COVID-19 measures generally)?

EU:  The issue of vaccinations in the workplace and any associated liability aspects play a huge role in the day-to-day consulting practice of law firms within the EU.  Employers are generally not obliged to offer their employees the opportunity to be vaccinated against COVID-19.  In Belgium, however, if an employer’s risk analysis reveals that employees are exposed or likely to be exposed to biological agents (e.g. COVID-19) in the workplace, the employer has the obligation to give them the opportunity to be vaccinated.  Also, in most EU countries, some employers voluntarily offer vaccinations via company medical officers at the company premises.  There may also be liability risks if an employee contracts COVID-19 in the workplace.  Employers are well advised to develop appropriate country-specific hygiene concepts to minimize the risk of employee infection.  In most EU countries, the employer cannot oblige employees to take a COVID-19 test.  However, in countries like Belgium, Germany and Hungary, the employee may be required to be tested under certain conditions (like strong indication of SARS-CoV-2 infection at workplaces where contact with colleagues is unavoidable).  In the Czech Republic, employers can restrict access to the workplace for employees who do not meet certain conditions (presentation of a negative test, vaccination certificate or similar).  Nevertheless, even in countries where employees are not obliged to take a COVID-19 test, if an employee tested positive for COVID-19, they are at least required to stay at home in quarantine, or furthermore (in Germany and Italy) to inform the employer of the positive test result.  If the employee conceals such a test result from the employer and continues to visit the workplace, he or she may be liable for consequential damages, such as illness among colleagues and related damages to the employer, depending on the law in the respective country.

U.S.:  As with many other COVID-19 topics, there is risk on both sides.  If employers do not require vaccinations, and an employee contracts COVID-19 in the workplace, an employee could claim the employer is liable.  Such a claim would likely fall under workers’ compensation laws, which are governed at the state level.  In some states, employees have the burden of proof to show that they contracted COVID-19 from work, while in other states, there is a presumption that some types of employees (such as essential workers) contracted COVID-19 from work.  On the flip side, if employers do require vaccinations, they also face risks.  If an employee has a bad reaction to the vaccine, he/she could try to hold the employer liable.  While it is likely that an employer would be immune to liability under the Public Readiness and Emergency Preparedness Act (which protects individuals and entities from liability arising from the administration or use of medical “countermeasures” (which includes a COVID-19 vaccine)), there has not been clear guidance on the applicability of the Act to an employer’s mandatory vaccine policy.  Similarly, if an employer requires vaccinations, an employee cannot receive the vaccine, and the employer is unable to reasonably accommodate the employee and thus terminates employment, the employer faces potential disability discrimination claims.

Conclusions

The foregoing reflects the many aspects around COVID-19 vaccines that can affect the workplace.  These considerations vary by country, industry, and individual workplace.  As with many aspects of COVID-19, the legal and practical landscape of vaccinations is dynamic, and new developments occur frequently.  Employers should keep abreast of such developments, carefully consider their policies (and whether updates are needed with each major development), and partner with legal counsel.

Authors:

  • Jessica X. Rothenberg, Associate at TROUTMAN PEPPER LLP in New York | Jessica.Rothenberg[at]troutman.com | +1 212 808 2731
  • Dr. Tobias Polloczek, Partner at CMS HASCHE SIGLE in Frankfurt, Germany | Tobias.Polloczek[at]cms-hs.com | +49 69 71701 356
  • Dr. Justus Redeker, Associate at CMS HASCHE SIGLE in Frankfurt, Germany | Justus.Redeker[at]cms-hs.com | +49 69 71701 413

Stay tuned for more on this series! We hope you enjoy these Thought-Leadership pieces written by our members.

[1]     Due to the large number of EU member states, the following analysis is based on the following countries (which are therefore meant when talking about “the EU” in this article):  Belgium, Bulgaria, Croatia, France, Germany, Hungary, Italy, Poland, Slovakia, Slovenia, the Czech Republic and the Netherlands.