Can companies force their staff to be vaccinated against Covid-19?

Written on 24 Dec 2020

Initially, after the first reports of the pandemic, we wondered whether companies could implement mandatory temperature controls at the entrances to their workplaces. Then the debate arose on the imposition of PCR testing for the detection of positive cases in the workforce. At the moment, with the imminent arrival of vaccines, there are many opinions about the real possibility that employers could impose vaccination on their employees, or even use this circumstance in the selection process.

Under the current legal framework, it is not possible for companies to impose compulsory vaccination on their staff. Given that for the time being the administration of the vaccine will be voluntary for the general public without exception, such an order by a company would not be justified. Neither when the reason given is purely economic or productive (e.g. to avoid outbreaks which could force a halt in production), nor when the decision is taken as a measure to protect the health of workers against inherent risks of the job, although the latter case is subject to more legal discussion than the former one.

Consider, for example, the case of health establishments in which the personnel carrying out certain activities can be considered to be included within the so-called risk groups. In these cases, Article 14 of the Law on the Prevention of Occupational Risks establishes the right of workers to effective protection in terms of health and safety, which entails a corresponding duty for the employer to protect its employees against possible risks arising from the workplace. This basic principle in preventive matters could mean that in certain cases the employer may be oblige to offer and pay for certain vaccines for their employees, when these protect them from diseases which constitute specific risks arising from the job they perform. However, even in these cases, workers would not be obliged to be vaccinated.

A clear example to show that even in these specific cases vaccination would be voluntary for the worker is found in Article 8.3 and Annex VI of Royal Decree 664/1997, of 12 May, on the protection of workers against risks related to exposure to biological agents at work. These precepts establish that, when the evaluation of the workplace reveals the existence of a risk due to exposure to biological agents for which there are effective vaccines, employers must make them available to their workers. All this at no cost, informing them of the advantages and disadvantages of vaccination, and stating in writing both the offer of the measure and the acceptance by the worker.

Consequently, even if the employee repeatedly disobeyed a hypothetical vaccination order which was compulsory at the company, the employee's non-compliance would not be considered sufficiently serious and guilty to justify disciplinary dismissal on that ground, since that order had no legal basis and far exceeded the employer's powers.

Our conclusion would be different if given the current pandemic situation the competent public authorities, were to impose compulsory vaccination by law on the entire population or on certain groups, such as workers in direct contact with vulnerable people. This would not be the first time that compulsory vaccination has been legally imposed, since, for example, the 1944 National Health Act made vaccination against smallpox compulsory for the entire population.

In these cases, employers could oblige their employees to be vaccinated, as this would be one of the exceptions to the general principle of the voluntary nature of the vaccinations established in Article 22 of the Law on the Prevention of Occupational Risks. According to this precept, the prior consent of the employee would not be necessary if it were established in a legal provision regarding the protection of specific risks and particularly dangerous activities. If this were the scenario for the future, the viability of an objective dismissal due to ineptitude would be considered if the worker refused to be vaccinated, if this prevented him from continuing to carry out his work due to a legal imperative.

In conclusion, and unless very low rates of voluntary vaccination force the authorities to change their approach in the future by imposing compulsory vaccination, it is not legally feasible for companies to oblige their employees to be vaccinated, at the risk of being dismissed in the event of non-compliance.

What is very likely to happen in the short term is the proliferation of campaigns within companies to encourage vaccination among their employees, with the dual purpose of achieving their own protection, thus controlling absenteeism, and preventing them from being a source of contagion for other workers, or for third parties.