Vaccination – An Employer’s Perspective
The Covid-19 outburst, in year 2020, has brought out many challenges for businesses at large. One such a challenge was the safety of the workforce and containing its spread amongst them while working from office in a restrictive manner.
Of late, it is being debated as to whether to allow only those employees to office who have been vaccinated or otherwise. With the said background, we will discuss on certain issues as under;
Whether or not any employer can impose any medical condition, like mandatory vaccination, on its employees.
This is a global issue which is hovering in almost every company, and hence to deal with it, we will take a country wise approach to have better clarity.
In India, there is no law which categorically provides that an employer can mandate an employee to get vaccinated as a condition precedent to carry on with their job or for allowing them to enter the office to work.
At the same time, an employer always expects an employee to be in a healthy condition, and nowadays in most of the companies a medical test is mandatory during the process of recruitment itself. So the emphasis is on recruitment of a medically fit person.
It is pertinent to note that medically fit is not only a one time criteria during recruitment alone but also a reasonable expectation of an employer from its employee that they will be in the best of the medical condition so as to perform the job assigned to them with proper diligence.
It is equally significant to note that an employment contract between an employer and employee would prescribe certain health conditions or medical requirements, which may come to the rescue of an employer to ask employees to get them vaccinated, provided it is covered under the expression of a specific clause to that effect in the contract itself.
Companies have also set a six monthly or atleast an annual medical test to ensure that their employees are medically fit and fine to carry out the respective jobs with the same efficiency.
Above all, Covid-19 being highly infectious, any infected person as a carrier can further infect persons who come into contact with them. Hence, any company can restrict a Covid-19 positive person from entering the office for sure.
However, so far more than 9.4 crore people have been vaccinated in the country. The Ministry of Health and Family Welfare, Government of India has not made vaccine mandatory and neither can the employers make their employees take the same against the employees’ wishes. The vaccine itself is being administered in age groups alone and amongst class of persons specified so far. Therefore, a company cannot expect any of its employees to get vaccinated out of turn and in contravention of the medical policy for administering vaccine to the Citizens of India by the Government of India.
In India, so far COVISHIELD and COVAXIN are the two prevalent vaccines. The process of vaccination began from January 2021 in a phased manner and currently from 1st April 2021, the Government has allowed persons above the age of 45 to get vaccinated.
Another issue which crops up for the HR department would be if an employer instructs its employees to get vaccinated, but they deny following the instruction, whether it can be considered as indiscipline.
A school of thought would advocate that disciplinary action can be initiated against them after calling reason(s) from them of their denial to follow such an instruction. But it may become a very debatable issue to even consider along with another perspective that employees who have already been vaccinated can become vocal to permit only vaccinated employees in the workplace.
The solution would be to deal with these issues in a reasonable manner with empathy while safeguarding interest of every employee in the workplace during these pandemic times.
In Australia, Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 mandates vaccination against “specified diseases”.
Further, in case of Ms. Maria CorazonGlover v. Ozcare (2021) FWC 231, the applicant made an application to the Fair Work Commission stating that she was unfairly removed from her workplace and was informed that she cannot return to work without receiving the mandatory influenza vaccine due to Covid-19 pandemic.
She alleged that she had not administered the vaccine due to allergies. The Court while hearing the entire matter held that the employees are obligated to directions that are laid by their employer which are lawful and reasonable. Failure to comply with these directions shall be seen as breach of contract and the employee can be terminated regardless of the employee’s reasons.
In the United States of America, the U.S. Equal Employment Opportunity Commission has allowed various companies to mandatorily ask their employees to get vaccinated from the flu and other diseases including Covid-19.
The reason behind the same is simple and clear that people who are not vaccinated poses a serious threat for the entire workforce. This however does not mean that person not taking the vaccine will be fired. Such an employee however will have to sign and agree to work under specific and supervised conditions in order to limit the risks of the disease for oneself and to other employees.
Further, it would be the choice of the Employer to decide whether or not the Employee will be asked to attend the premises physically while extending exceptions as well to certain employees with proper saefeguards.
In UK, the Government has clarified that it wont make vaccination a mandatory requirement for its citizens.
This also equates the situation at par with Indian jurisdiction since there is also no law which mandates for vaccination as a mandatory condition by any employer.
Whether Vaccinated Person is still a Carrier
With regards to the issue whether or not the vaccinated person can be a carrier in transmission of the Corona virus, as per the Centers for Disease Control and Prevention, USA, a fully vaccinated person can still get the disease by the transmission of the virus even though they have low potential to spread the virus. At the end, it depends completely on the efficiency of the vaccine for both symptomatic and asymptomatic infection. Higher the efficiency, lower the chances of getting the disease post-vaccination.
According to the World Health Organization, the research on the issue is still ongoing as to how a vaccinated person is likely to be safe and protected from the infection and whether or not can he transmit the same to others. Therefore, the WHO Covid-19 Protocols are to be followed irrespective of whether the person has administered the vaccine or not.
We rather advise that even with the Pandemic Business Cycle and Pandemic Legal intelligence being deployed, it is high time when every aspect related to vaccination needs to be dealt in an emphatic manner coupled with reasonableness.
An employer can rather have an addition in HR Policy to the effect that no employee shall pose a direct or indirect threat to the health or safety of other employees in the workplace during this Pandemic.
Further, there is a great concern amongst employers as to whether they can seek the details of vaccination of their employees without having any impact of data privacy. It must be realised that seeking such details is only meant for safety of workforce at large and purely meant for internal assessment and prevention of spread of Covid-19 at the workplace. Hence, it cannot be construed to infringe the privacy of any employee at any given point of time.
We further emphasise that Employers should be rather encouraged for vaccination and to carry out education drive cum campaigns in their organisation to make people more responsible and sensible to opt for vaccination. Such campaign should focus on educating its importance and how precaution can be taken during this pandemic with vaccination.
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