Can employers require staff to be vaccinated?

25 March 2021
While the law does not require individuals to receive a Covid-19 jab, there are a number of options companies can consider to encourage uptake among staff

This package also includes:

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> Saudi may mandate Covid-19 vaccines for Hajj 2021
> The vaccine race is a global experiment
Covid-19 cases cross 6 million-mark in Mena

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The UAE and governments across the GCC region are now providing vaccinations against Covid-19 to all citizens and residents for free, leading employers in the region to consider how this fits in with their return-to-work plans.

The benefits to employers of having a fully vaccinated workforce are self-evident and, as such, many employers are exploring ways to make this happen.

There is no law in the UAE or any of the GCC countries that requires individuals to receive a Covid-19 vaccination and, in the UAE, authorities have made clear that such an overarching law is very unlikely to be forthcoming.

Consequently, employers are unable to rely upon a blanket legal requirement if they wish their employees to be vaccinated.

In the absence of this, many employers (and some government bodies) are considering their options to either impose their own requirements on their employees to get vaccinated or, where this is not possible, take a softer approach to encourage them to do so.

Some of these options are explored below, focusing primarily on the UAE; however, the position is broadly the same across the GCC countries.

Direct request – protecting health and safety

Every UAE employer is subject to a legal duty to protect the health and safety of their employees while at work. They are also subject to laws requiring them to prevent the spread of communicable diseases, including Covid-19.

Similarly, employees are subject to legal duties to abide by reasonable instructions issued by the employer for the purposes of health and safety.

An employer may be in a position where it deems vaccinated employees to be essential to meetings these health and safety obligations and may put in place an internal requirement for employees to receive the vaccination (or even including it as an express contractual requirement for new joiners).

Whether or not a request by an employer for an employee to be vaccinated is a 'reasonable instruction' will depend on a range of factors including the nature of the workplace, the type of work and the individual employee's circumstances.

For example, an instruction requiring staff working in healthcare settings, or in close contact with the public, to be vaccinated is more likely to be reasonable given the risks associated with this kind of work.

Where a vaccination requirement is reasonable, but a staff member refuses to be vaccinated, employers will have to carefully consider the reasonableness of the refusal before taking further action.

Steps such as disciplinary action or dismissal could give rise to discrimination or arbitrary dismissal claims by the employee if there was a satisfactory underlying reason behind their refusal, such as a disability or health condition, pregnancy or religious beliefs.

However, there will be scenarios in which employers can treat staff differently depending on their vaccination status.

Vaccinated staff may be given particular duties or invited to travel or participate in certain activities depending on the nature of the business.

It may also be reasonable for partner organisations, particularly government entities, to impose a vaccination requirement on staff who are outsourced or work in close contact with them.

The Abu Dhabi Department of Economic Development has extended a requirement for employers to ensure staff get a PCR test weekly

Soft compulsion

In Abu Dhabi, a number of government circulars have been issued to both public and private sector employers as 'soft' encouragement to employers to require staff to take the vaccine.

Last month, the Abu Dhabi Department of Economic Development (ADDED) extended a requirement for employers to ensure staff get a PCR test weekly, from public sector to all employers, and this may be an approach that is taken up across the UAE.

Employees who have received both doses of their chosen vaccine are exempt from the weekly test requirement. The cost of PCR testing can, but does not need to be, covered by the employer. This requirement could be expensive for employees who choose not to receive a free vaccine.

The requirement to have a weekly PCR test does not currently apply to staff who are working from home and not attending office premises and mixing with other colleagues.

Fines for non-compliance start at AED2,000 (approx. $554) and are applied against the employer, not the individual employees.

This approach, although leaving the ultimate decision on whether to receive the vaccination up to the individual employee, acts as a strong incentive for employees.

Some employers have arranged for groups of staff to receive the vaccine at their place of work

Encouraging vaccination

The above steps, although falling short of a legal requirement to obtain the vaccination, can still place strong obligations on employees in practice.

Often these steps will not be appropriate and, on a practical level, there are a number of actions that employers can take to encourage their staff to be vaccinated and to make it as easy as possible for them to attend.

Some employers have arranged for groups of staff to receive the vaccine at their place of work.

Where this is not practical, employers could allow staff to attend their vaccination appointment during the working day, or provide appropriate paid leave to attend both appointments and, potentially, recover from any side effects.

Employers should also consider using internal communications channels to raise awareness of the benefits of vaccination and any associated workplace policies, for example with regards to time off.

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