Vaccination is another challenge for employers: what to watch out for?

Lawyer and Head of the Professional Services Company EY The consultancy Rūta Žukaitė comments that today the legal regulation on vaccination against COVID-19 is not complete and clear, therefore, there are a series of questions about the employer’s ability to implement and supervise the vaccination of its employees, the proper processing of employee personal data, etc. . Each company will prepare for it individually. However, it is important to consider a number of key legal and managerial issues so that the vaccine preparation processes are efficient and smooth.

Attorney R. Žukaitė provides answers to the most relevant questions.

Does the employee have to be vaccinated?

Currently, the vaccination of workers in only a few sectors is defined by law. The Labor Code and the Law for the Prevention and Control of Communicable Diseases of People establish certain circumstances in which employees can be removed from work or authorized to work only after a control or illness.

So far, the situation where an employee refuses to be vaccinated is not regulated. Therefore, vaccination is considered optional, that is, a worker cannot be vaccinated without his consent and refusal to vaccinate cannot have negative consequences within the meaning of labor law. This means that such an employee cannot be subject to disciplinary measures, work restriction, access to the territory of the employer.

On the other hand, it is important that employers are aware that they must guarantee safe working conditions for their employees, that is, they must be able to be vaccinated and take other usual preventive measures to avoid the spread of the coronavirus in the workplace. The last measures may include periodic tests and, in case of signs of illness and the employee’s refusal to take the test (not vaccinated), expulsion from work (in the cases provided by law, without payment of salary).

How can vaccination be promoted?

When organizing a company for vaccination, it is recommended first of all to work closely with employee representatives, to present the available information in a transparent and clear way, thereby raising awareness among employees and helping them make scientifically based decisions.

Various motivational measures can be used to promote vaccination and improve vaccination performance. For example, give 4 to 8 hours. length of time paid by employer for vaccinations, lump sum payments and others.

How to process personal data on worker vaccination?

A report from the Ministry of Health (SAM) indicates that the employer must first draw up a list of people who want to be vaccinated. Given this, the company should contact the vaccination coordinator of the municipality in particular, with whom the vaccination center will coordinate, who will organize the vaccination of the employees of that company. The employer must then contact a designated center to arrange a date and time for the vaccination.

This means that the employer has full responsibility for organizing the vaccination process, describing it adequately in internal documents and ensuring the collection and legal storage of employees’ personal data.

It is important to note that personal health data can only be processed with the explicit consent of the data subject. Therefore, an employer is prohibited from collecting and processing employee vaccination data without permission, even if the employee shares this information. Therefore, it is necessary to obtain the prior consent of the staff for the establishment of vaccination lists and the subsequent processing of the data.

How to organize work after vaccinations?

Companies are likely to face situations where the entire team does not want to be vaccinated. In this case, the employer must guarantee work processes in such a way that unvaccinated workers do not feel discriminated against or treated less favorably.

However, when it comes to people’s health, the employer has the unequivocal right to offer the employee or his group to limit contact with colleagues, clients, clients: work remotely, be relocated, limit business trips , etc. In this way, the employee is free to choose whether he wants to be vaccinated or to work in the conditions necessary to guarantee safety and health at work.

Temporary changes in working conditions other than those applied to vaccinated workers cannot be considered discrimination against a worker due to refusal to vaccinate or to the provision of information on vaccination, as they would justify the employer’s duty to ensure proper functioning. insurance and a legitimate interest in continuing. . It is important that said change in conditions is proportionate, timely and justified, and that the situation of each employee is evaluated individually.

It is important to assess the impact of changes in the future.

Although there should be no negative consequences for a worker who refuses to be vaccinated at this time, the situation may change in the future. When assessing the mobility of workers, the specificities of certain workers, the impact of COVID-19 on the organization of work, refusal to vaccinate can lead not only to an increased risk of infection and spread of the virus, but also to additional costs for employers, like newspapers. worker testing, funding for healthy working conditions, etc.

Modifying regulations and introducing certain measures, such as the so-called “green passport” of the EU, will allow companies to use vaccination as a means to greatly facilitate work processes. In addition, as the situation in COVID-19 is considered exceptional, extreme, it can be predicted that individual interest and refusal to vaccinate may exceed the interest of the general public in curbing the epidemic and the employer’s expectations of a fluid work organization .

This conclusion is confirmed by the ruling of the European Court of Human Rights today in one of the cases in which the compulsory vaccination of children did not violate Article 8 of the Convention (Right to respect for private and family life), as Such measures may be considered necessary in a democratic society. Therefore, it cannot be unequivocally concluded that, for example, the dismissal of workers who refuse to be vaccinated is considered illegal.

Therefore, although today we do not have clear regulations on the mandatory nature of vaccines, it is agreed that vaccines can be considered a means of guaranteeing safety and health at work. Consequently, it allows the employer to organize the vaccination, process the necessary data of the employee. The most important thing is that these actions are carried out with the maximum guarantee of the individual right of employees to decide on vaccination, adequate information and the security of the personal data processed.