The whole world is holding their breath and eagerly waiting for news regarding the availability of effective COVID-19 vaccines so that societies and workplaces can re-open and everyday life resumed. The hope of an effective remedy against the virus that has caused so much havoc has raised the question whether employers are able to require employees to vaccinate themselves against COVID-19 before returning to workplaces and what are the relevant procedures for arranging vaccinations.
Although a national immunization plan is in place in Estonia, vaccination is not mandatory. According to currently available information, this will be also the case with regard to the COVID-19 vaccine. So, although requiring vaccination against COVID-19 might seem an easy and effective option to ensure workplace safety, imposing a general vaccination obligation on employees as a precondition for returning to the workplace is not an option. At the same time employers are themselves obliged to provide employees with the possibility to get vaccinated.
Viruses are regarded as biological hazards in the workplace. Employers whose employees are or may be affected by such hazards (due to the pandemic this currently includes the majority of employers) are to take measures to prevent or minimize the impact thereof.
At first the employer has to take any other less intrusive measures (e.g. rearranging work, social distancing, barriers, and protective gear such as masks) and if these are insufficient, provide employees with the possibility to get vaccinated, provided that an effective vaccine against the biological hazard exists. The determination has to be made on the basis of an occupational health and safety risk assessment, which each employer has to have in place. In case the existing risk assessment has not yet been updated to take into account the new COVID-19 related risks, then it is high time to get workplace risks re-evaluated.
After risk assessment, the employer has to discuss the need for vaccination with an occupational health doctor. If the latter recommends vaccination based on the results of the risk assessment and affected employees agree to vaccination, the employer can go ahead and arrange vaccinations. This is done at the employer’s expense and the vaccination costs are not regarded as taxable fringe benefits. However, if the occupational health doctor does not recommend vaccination, but the employer nevertheless wishes to provide employees with the vaccination option, then vaccination costs for the employer are taxable fringe benefits.
As to the question whether an employer would have the right not to allow unvaccinated employees into the workplace, then ‒ considering the voluntary aspect of vaccination ‒ such a ban could be regarded as too excessive. On the other hand, an employer is entitled and obliged to set forth rules of work. Thus, if risk assessment suggests that certain restrictions are needed on how work is carried out (e.g. for protection of employees, customers, patients), the employer may establish a rule that certain jobs can be done only by employees who have been vaccinated. In doing so, the employer also needs to think how to reorganize the work of those employees who do not wish to be vaccinated but cannot continue work on previous terms and conditions.
That said, it has to be pointed out that Estonia is participating in the joint EU procurement of vaccines and the first batch of vaccines is expected to arrive in January 2021 and then gradually other batches will follow, but these will not be freely available on the market. Although the government plans to offer free-of-charge vaccinations to everyone in 2021, in the first order vaccinations are provided only to front line health care professionals, nursing and care home workers and residents, the elderly and persons belonging to risk group(s) due to health conditions. For others, vaccines would become available not earlier than the end of the first quarter of 2021. When vaccines would be available freely on the market is currently unknown. Thus employers cannot yet plan their own vaccination programmes but can encourage employees to take the opportunity to take part in the government supported programme.