No jab, no job? Considerations on how IOs will implement COVID-19 safety at work

Mandatory Vaccinations

A key question arising out of the COVID-19 pandemic is whether international organisations (IOs), like domestic governments, may legitimately pursue mandatory vaccination policies. Despite their name, mandatory vaccinations are not truly compulsory. In cases of non-compliance, governments cannot force individuals to comply or use criminal sanctions to change their minds.

However, mandatory vaccination policies can limit individual choice and liberty by making vaccination a condition of attending certain locations, such as school or work. Just like any other employer, IOs can also introduce mandatory vaccinations, testing and other policies which distinguish between vaccinated and unvaccinated staff.

Legal Basis?

At present, there is no legal basis for IOs to implement mandatory vaccination policies. The World Health Organisation does not presently support the introduction of mandatory vaccination policies and vaccination remains a voluntary choice for all international civil servants.  As a result, international tribunals are yet to rule on the validity of mandatory vaccination policies at an international level.

IOs have instead relied upon policy guidance from the UN to ensure that all necessary measures are in place to support the health and safety of their staff members while carrying out the functions and responsibilities entrusted to them. A key element of this policy is the requirement that UN personnel work from home unless their physical presence is necessary to carry out essential work.

In addition, IOs may argue that these measures are necessary to maintain their duty of care to their employees under existing Staff Rules and Regulations (UNAT Judgment No. 1204, Durand). In Grasshoff, the ILOAT stated that:

It is a fundamental principle of every contract of employment that the employer will not require the employee to work in a place which he knows or ought to know to be unsafe…If there is doubt about the safety of a place of work, it is the duty of the employer to make the necessary inquiries and to arrive at a reasonable and careful judgment, and the employee is entitled to rely upon his judgment.

This reasoning was relied upon in a recent ruling by the UN Dispute Tribunal, which found that the UN Assistance Mission in Afghanistan made all necessary safety and security arrangements to allow for the Applicant’s safe return to the duty station. The potential implications of transporting the Applicant from Bamyan to Kabul were not found to constitute an abnormal risk to the Applicant’s health, despite his particular vulnerability to COVID-19. Vaccinations, which would significantly lower the Applicant’s risk of contracting COVID-19, were also made available to him and he was made eligible for priority consideration in receiving the vaccine.

Practical Basis?

At a domestic level, it has also been well-recognised that, in certain industries, an obligation to undergo vaccination may be imposed in the interests of maintaining public health and safety. This obligation was recognised by the European Court of Human Rights in Vavřička and Others v the Czech Republic, which upheld the existence of a:

general consensus on the vital importance of protecting the population against diseases which may have serious consequences for the health of the individual and, in the event of serious epidemic outbreaks, disrupt society.

Mandatory vaccination policies may therefore become a practical necessity, based on the type of work required by an IO and the level of risk associated with the work, rather than a blanket rule for all employees. As we are yet to see such policies at an international level, it is essential that government administrators and policy makers learn from domestic experiences around the world.

France

French courts have ruled that non-payment of a salary due to suspension from employment, under Article 14 of Law 2021-1040 of 5 August 2021, is the direct result of an employee’s free choice to refuse vaccination. Suspension from employment may therefore occur when there are no viable alternatives, such as paid leave, working from home or assignment to another position.

French courts have rejected the argument that suspending the employment of a person who freely refuses to be vaccinated meets the high threshold of severity required to constitute “degrading treatment” (A v UK, ECHR, 19 February 2009, [134]). More recently and in relation to the COVID-19 pandemic, the Strasbourg administrative court (Interim Order No. 2106447 of 27 September 2021) and Pau administrative court (Interim Order No. 2102411 of 16 September 2021) have also ruled that mandatory vaccinations did not cause serious and manifestly illegal harm to individuals’ physical integrity.

Similar arguments have been made and dismissed in France in relation to free and informed consent to medical care, discrimination and the validity of conditional marketing authorisation. In summary proceedings, the Pau administrative court specified that:

The vaccination obligation imposed on professionals in caring and non-caring roles in public health establishments does not create any discrimination between vaccinated and non-vaccinated workers which would be contrary to the principle of equality.

Australia

A recent decision by the Full Bench of the Fair Work Commission in CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 operates as a stark reminder to employees that any direction by their employer must be both lawful and reasonable. In this case, the employer was a mining company that failed to give its employees information about its proposed vaccine mandate and failed to give them an adequate opportunity to express their views.

Despite these shortcomings, the Commission found that the vaccine mandate was reasonable based on factors such as it being “a reasonably proportionate response to the risk created by COVID-19”.

It should also be noted that, in this case, BHP was not subject to a public health order which required them to direct their employees to be vaccinated. This means that, unlike the French court decisions discussed above, there was a reduced likelihood that a mandatory vaccination direction would be considered “reasonable.”

Austria 

Austria is the first country in Europe to introduce a law which makes vaccination against COVID-19 compulsory for anyone aged over 18. The law is expected to remain in force until January 2024 and imposes fines ranging from €600 to €3,600 for those who refuse to get jabbed. It is not clear how this law will be enforced but it does show that the government has drawn a line in the sand – that it has determined mandatory vaccinations to be the path back to “normal life”, and that this goal outweighs the resulting interference with individual rights.

One possible scenario arising from this development is that if an IO employee in Vienna refuses to comply with the national vaccination law, the IO could refer the employee to national authorities and the employee would lose the protection of their privileges and immunities. The IO would be justified in making such a referral as all headquarters agreements have a clause about compliance with the laws of the host country. 

If you choose not to get vaccinated, what do you need to consider?

No matter what policies IOs choose to adopt, the bottom line is that no one can be forced to receive a vaccine. However, employees who refuse to be vaccinated or produce evidence of their vaccination status are encouraged to sit down with their employer and discuss their reasons for doing so, as well as any alternative arrangements which could be put in place to ensure their ongoing safety at work (such as working from home).

This is especially true for employees who may be particularly vulnerable to COVID-19 and medically exempt from mandatory vaccine requirements, or have mitigating personal or family circumstances. Policy in this area will need to be developed on a case-by-case basis in order to prevent discrimination or unfair dismissals from occurring.

For example, in Prosser v Community Gateway Association Ltd, the UK Employment Tribunal found that it was lawful for an employer to send their pregnant employee home until adequate health and safety measures had been implemented in the workplace. In Gibson v Lothian Leisure, the dismissal of a chef who refused to return to work at the risk of infecting his clinically vulnerable father was found to constitute an unfair dismissal.

In cases where an employee is unable to perform the key duties of their role due to being unvaccinated, employers may be forced to consider suspension or dismissal. For example, in Kubilius v Kent Foods Ltd, the UK Employment Tribunal found the dismissal of a delivery driver for failure to wear a mask to be fair, despite official guidance being that mask-wearing was optional at this time.

This should be a key consideration for employees who are required to travel internationally as part of their role. As long as IOs have put in place adequate health and safety measures, such as making vaccinations available to their staff, having arrangements in place if the employee contracts COVID-19 and/or has to self-isolate, it is difficult to see how an employee could refuse to carry out their role or claim that they were dismissed unfairly as a result.

In certain circumstances, termination of employment for failure to comply with a mandatory vaccination direction may give rise to claims for:

• unfair dismissal, particularly where a medical exemption applies;
• claims of unlawful dismissal on the grounds of discrimination; and
• worker’s compensation claims for psychiatric injuries induced by the vaccination policies or related administrative actions.

However, as at the date of this blog, such claims remain largely untested by national and international tribunals.

The Road Ahead…

Employees of IOs are encouraged to keep up to date with recent developments, including court and tribunal decisions, organisational policies and ongoing guidance from governments and international regulators.

Employers will also be forced to strike a balance between maintaining their duty of care to their employees and ensuring the health and safety of their workforce, against the potential costs of mandating vaccinations and opening themselves up to the possibility of future disputes.

We recommend that both employers and employees continue to seek expert advice as the impacts of the COVID-19 pandemic continue to unfold on the international stage.

Title photo credit: Bayer