Practice on Employee’s Vaccination

It has been almost 3 months since the beginning of the second stage of the vaccination campaign against COVID-19 and over 1,150,000 persons were vaccinated as part of the “second stage” of vaccination strategy, partly falling under the category of key, essential areas personnel, as such is regulated under Government Decision no. 1031/2020 on the approval of the Vaccination Strategy against COVID-19 in Romania (the “Strategy”).

Furthermore, after a period when registration was not possible as there were several logistical issues which made the vaccination process more difficult, on February 10thnew vaccination centers for the administration of AstraZeneca’s vaccine have been activated in the National Platform for the appointment for the vaccination against COVID-19 (the “Platform”), 10,800 slots/day being available in the 180 new centers across the country. Moreover, starting March 10th, it was made available to the general population living in municipalities having an incidence rate of over 4.5 per 1,000 inhabitants the possibility to get an appointment for the vaccination, as part of the third stage of the vaccination campaign.

It is important to note that, for the category of key, essential areas personnel, the registration in the Platform is performed by the employer, to which end, at the level of the company it should be appointed a person to act as the person responsible for such registration.

However, the vaccination procedure may raise concerns for the employer, both from a data privacy and employment perspective, the latter being in the position when its interests may not prevail over the interests or fundamental rights and freedoms of the employees.

  1. Can an employer oblige the employees to take the vaccine?

According to the Strategy, the vaccination shall be done voluntarily and based on informed consent, mandatory vaccination being seen as an infringement of one’s physical integrity. Thus, no employer may oblige its employees to get vaccinated.

Furthermore, requiring employees to be vaccinated as a condition for allowing them to perform their job-related duties may be deemed, depending on the circumstances, as an infringement of the right to work as such is provided under the Romanian Constitution. On the other hand, morally constraining an employee to get vaccinated may trigger various claims from the latter, mainly on harassment or discrimination grounds.

  1. How do I know if the employees want to be vaccinated?

From a legal perspective, it is important to take into consideration that employers have the obligation to ensure the safety and health of workers, including in terms of prevention. However, in light of the aspects described above, since vaccination is not mandatory, the employer’s obligation to protect the health of its employees may not be deemed as sufficient to impose the employees the obligation to get vaccinated.

From this perspective, in a reasonable interpretation, it may be deemed that it is the responsibility of the employer only to inform the employees, in a clear and accurate manner, about the possibility to benefit from the vaccine against COVID-19 and take all the necessary measures to register the employees in the Platform, upon their request. Such might be carried out by facilitating the access of the employees to available information from trusted, official sources.

Since the vaccination is based on voluntarism and informed consent, in practice, it is important for the employer to be able to prove that one’s registration in the Platform was done upon his/her request. Thus, an option that might be envisaged is to have the employees declare whether they want to benefit from the COVID-19 vaccine, following to further register the relevant employee, based on his/her declaration, in the Platform. One notable aspect to be taken into consideration is that such procedure implies personal data processing operations, to which end the employee must be informed accordingly on the processing and/or, as the case may be, transfer, as per the General Data Protection Regulation (“GDPR”).

When informing the employees on the terms and conditions under which their personal data may be processed, the mandatory elements provided by GDPR in order to ensure the proper and transparent information of the data subjects and the related guideline regarding the “validity” of the informed consent should be considered.

  1. Can an employer require employees to be vaccinated as a condition of returning to the workplace?

In practice, an option considered by most employers when an employee refuses to get vaccinated is telework or work from home, provided that the type of the activity carried out by the relevant employer allows it.

However, since as per the in force legal provisions, vaccination against COVID-19 may only be done on a voluntary basis, while the employer cannot require the employees to get vaccinated, it may not be excluded the interpretation that refusing one’s access to the premises of the company as a consequence of the fact that he/she is not vaccinated represents, in fact, discrimination, thus triggering the applicable legal provisions in connection thereto.

Furthermore, requiring information of one’s vaccination status may be seen as problematic given the GDPR provisions. Thus, information on whether one is or not vaccinated might fall under the umbrella of special categories of personal data, namely health data.

From this perspective, since as per Art. 9 of GDPR, special categories of personal data may be processed only in exceptional circumstances, the employer must ground the processing operations regarding this type of data (i.e., information on the vaccination)on one of the exceptions set forth at Art 9 (2) of GDPR. However, even if at a first sight there are several legal grounds that may be taken into consideration for such processing operations, counterarguments may be argued in respect to each of them, as follows:

  • 9 (2) a) of GDPR, namely “the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject;”

Although the consent may be deemed as a possible legal basis to process information regarding the vaccination status, when it comes to employment relationships, the employer cannot rely on the explicit consent of the employee since, in principle, within the employment relationship the consent cannot be used as a lawful legal basis. This is due to the fact that “the employer-employee situation is generally considered as an imbalanced relationship in which the employer wields more power than the employee”. Thus, since consent has to be freely given, and in light of the imbalanced relationship, the employer in most cases cannot rely on the employee’s consent to use his/her data.

  • 9 (2) b), namely “processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law in so far as it is authorized by Union or Member State law or a collective agreement pursuant to Member State law providing for appropriate safeguards for the fundamental rights and the interests of the data subject”;

Even though it may not be excluded to foresee in the future situations where employers may process personal data of the employees regarding the vaccination status as part of their legal obligations, currently the in force legislation does not provide for such obligations, save for the obligation of the employer to register the employees in the Platform, upon their request (such not allowing, however, the employer to further ask the employee whether he/she showed up for his/her appointment and got vaccinated).

Still, in specific cases, the occupational health practitioner would be able to inquire such information regarding the vaccination status from the employees, subject however to the fact that the information is strictly relevant in terms of the health monitoring activities.