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This article is written by Vanya Verma from O.P. Jindal Global University. This article focuses on whether an employer can make it mandatory for its employees to take the COVID-19 vaccine and questions pertaining to the same as well as the stance of the Meghalaya High Court on mandating vaccination.

Table of Contents

Introduction

Following the second wave of COVID-19, the situation in India has significantly improved, prompting large firms to expect a gradual return to normalcy, which includes the establishment of new workplaces. While there are conflicting reports in the media about a third wave, and a huge portion of India’s population remains unvaccinated (including those who refuse to get vaccinated), various forums are debating the need for vaccination of workers who may return to work. According to statistics, the Government of India was able to vaccinate around 85.6 Crore individuals with the COVID-19 vaccine out of which only 22.4 Crore (as of 26th September) are fully vaccinated, still, a huge portion of the population is yet to be vaccinated.

The Ministry of Health and Family Welfare (“MOHFW”), Government of India, issued the “Liberalized Pricing and Accelerated National COVID-19 Vaccination Strategy,” which states that beginning May 1, 2021, every citizen over the age of 18 must be vaccinated. On May 21, 2021, employees’ family members and dependents over the age of 18 were allowed to be vaccinated at the workplace.

Following the announcements, a number of employers throughout India began recommending their staff to be vaccinated, even if their return to work was delayed or staggered. Vaccination camps were also held at various companies’ workplaces to get personnel vaccinated. Companies like Reliance Industries claimed to have given at least one dose of vaccine to 98 per cent of their staff. Employees at several companies were given incentives to get vaccinated. However, because a segment of the Indian population is still hesitant to get vaccinated, there have been instances of employees refusing to be vaccinated, apparently for a variety of reasons, including a violation of their right to privacy, the right to choose their own medication, or the right to religious freedom and religious beliefs, among others.

Given the government of India’s aim for all Indians to be vaccinated, and employers seeking to open workplaces, the subject of whether employees can be required to get vaccinated is regularly asked.

It’s worth noting that, in response to multiple inquiries, the MOHFW issued Frequently Asked Questions (FAQs) on COVID-19 vaccine in December 2020, clarifying that the vaccination (for COVID-19) is voluntary. MOHFW further noted that receiving the entire COVID-19 vaccine regimen is recommended for protecting oneself against the disease and limiting the transmission of the disease to close contacts such as family members and acquaintances.

Questions pertaining to vaccination at the workplace

Is vaccination mandatory and can employers mandate that their employees get vaccinated 

No. The Ministry of Health and Family Welfare recently released FAQs stating that COVID-19 vaccination is optional. Furthermore, no government law or notification has been issued that allows employers to make it necessary for their employees. As a result, entities cannot make vaccination mandatory for their employees on legal grounds. To protect its already existing and vaccinated employees, the employer can include a term or condition in its new employment contract that requires new employees to produce their vaccination certificate as an obligatory document for employment.

How can an employer regulate the vaccination of its employees if vaccination cannot be mandated

Employers cannot force employees to be vaccinated, but they may always encourage and educate them to do so in order to enhance workplace health.

Can an employer mandate an employee to produce a vaccination certificate as proof of vaccination before allowing them to enter the workplace

Such a mandate might be included in the employer’s internal policy, making it a general obligation of the employee to the workplace’s well-being and ethics. The employer can require an employee to submit a vaccination certificate for the employee to visit the workplace; however, it is important to note that the vaccination certificate falls under the category of “medical records,” and thus falls under the category of “sensitive personal information” under Section 3 of the Information Technology (Reasonable Security Practices) Act  (“Rules”)

As a result, all certifications submitted by employees, as well as any associated information, must be processed and stored in accordance with the Rules. Furthermore, prior to submitting such a vaccination certificate, the employer must always get the employee’s express consent. Further, employers should not be overly strict in requiring proof of vaccination as a record of admission into the workplace for employees who can show sufficient reason/medical proof to explain their refusal to be vaccinated.

Is paid time off mandatory for employees who are scheduled to get vaccinated

There is currently no law requiring employers to provide paid time off to employees who are scheduled to receive the vaccination. Employers, on the other hand, are always encouraged to encourage their employees to be vaccinated.

Can an employer be held liable for vaccination-related negative effects in any circumstance

If an employee is vaccinated solely because he or she is required to return to work after the vaccination, the employee is likely to initiate a lawsuit against the company, seeking medical expenses or other damages for any medical adverse effects. However, because vaccination is a personal choice, and the employer’s requirement for the purpose of visiting the office does not in any way jeopardise the employee’s employment, the chances of the employer being found guilty are less. However, if the employee can show in court that the employer made it mandatory for the employee to get vaccinated and that the employee had no other choice but to get vaccinated, the employer may be held liable. As a result, it’s best if employers make it clear that vaccination is optional rather than mandated.

What are the rights of the employer if an employee refuses to take the vaccine voluntarily

It is important to note that a company cannot fire employees for declining to take the vaccine. Employers, on the other hand, have the authority to refuse such employees admission to the workplace, as long as the employees’ rights and obligations under the employment agreement are not jeopardised. Employers can also reward employees who have been vaccinated while refusing to reward employees who refuse to acquire the vaccine. Walmart, for example, is rewarding employees who can show proof of vaccination with a $75 bonus.

Can an employer organise a vaccination drive for its employees at their place of business

The government of India released a “Guidance on COVID-19 Vaccination at Work-Places (Government and Private)” that allowed workplaces with around 100 eligible and willing beneficiaries (workers) to hold COVID-19 vaccination sessions (to facilitate optimal utilisation of vaccine dosage and reduce wastage). While the instructions specify that the District Task Force, led by the District Magistrate, and the Urban Task Force, chaired by the Municipal Commissioner, will identify such places of employment, employers can also approach the officials on their own to be considered. Such employees must register on the Co-WIN platform to demonstrate that they are willing vaccine recipients. Employers should ensure that three rooms are available at the workplace for waiting, vaccination, and observation.

How can companies assist and encourage their employees to get vaccines if they are not 100 eligible and willing beneficiaries to qualify for organising the vaccination session

Any form of relief from an employer is always an ethical and appreciated action during this difficult period. Employers might pay their employee’s vaccination expenses upon submission of a vaccination certificate in order to encourage them. This would encourage employees at the bottom of the corporate ladder, who are the backbone of each company’s workforce, to be vaccinated.

What is the best way for an employer to strike a balance between its commitment to offer a safe working environment and an employee’s rights

Yes, it is quite legal for an employee to refuse to be vaccinated. Regardless, businesses should establish a strict routine for employees to follow as a safety measure, such as sanitization, social distancing, hand washing, temperature checks, and so on. The protocols in the workplace must follow the guidelines set forth by the government.

Is it possible for an employee to be fired for refusing to comply with such a vaccination policy – will this be considered as a ground for termination

No, employees cannot be fired just because they refuse to follow the company’s vaccination policy. The refusal will also not be justified. However, the industry/area of business or activity in which the person works, as well as the individual circumstances, must be considered.

Should employers provide vaccinated staff with perks or accommodations

Employers in India currently have the discretion to provide any benefits or make any accommodations for employees who choose to get vaccinated. To encourage employees to get vaccinated as soon as they are in compliance with government regulation, numerous corporations are either subsidising the cost of vaccination for their eligible employees or cooperating with health care service providers to facilitate a seamless vaccination procedure.

Do employees who have been vaccinated have the right to refuse to work in the same area as employees who have not been vaccinated

No. Because vaccination is voluntary, a vaccinated employee cannot refuse to work with non-vaccinated colleagues. Needless to say, if a coworker is found to be suffering from symptoms suggestive of COVID, or if the employer fails to implement adequate social distancing measures and safety protocols at the workplace in accordance with the Standard Operating Procedure (SOP) issued by the Ministry of Health and Family Welfare, an employee may certainly raise a concern.

Is it possible for a company to deny access to the office if employees refuse to take the vaccine

Yes, employers have the right to deny entry to physical premises to any employee(s) they see fit, as long as the denial does not prevent the employee from performing his or her formal duties and obligations.

Is it legal for an employer to ask non-vaccinated employees to sit in a designated section of the office

Yes, this is a viable option. Employers must, however, provide proper communication, and designated zones must adhere to all safety regulations and criteria.

The stance of the Indian courts

The Meghalaya High Court in the case of Registrar General v State of Meghalaya (2021) came up with the issue as to given the invasive and long-lasting nature of an inoculation operation, it’s debatable whether a person’s freedom to decline vaccination will triumph over the public good of universal vaccination.

The lawsuit was brought in response to many orders made by the Meghalaya government requiring merchants, vendors, local taxi drivers, and others to get vaccinated before returning to work. Public interest litigation was filed in response to the Meghalaya government’s directives, and it was heard by a two-judge bench of the Meghalaya High Court.

“A notification/order of the State certainly cannot put an embargo and/or fetter on the fundamental right to life of an individual by stripping off his/her right to livelihood, except according to the procedure established by law,” Chief Justice Samadder said, referring to the MoHFW FAQs on vaccination. Even that procedure must be rational, just, and equitable. Until recently, there has been no legal mandate in place that can restrict or take away a citizen’s livelihood on the basis of coercive or compelled vaccination in general, or the COVID-19 vaccination programme in particular.”

Article 21 covers the right to health, as a basic right, within its fold,” CJ Samadder added. The right to health care, which includes vaccination, is a fundamental right in the same way. However, forcing vaccination or making it mandatory through forceful ways defeats the exact objective of the welfare associated with it. It infringes on fundamental rights in general, particularly where it undermines the right to a means of livelihood that allows a person to live.”

“Thus, by use of force or via deception, if an unwilling capable adult is made to get the flu vaccine would be regarded both a criminal and a tort or civil wrong, as was ruled in Airedale NHS Trust v Bland (1993) some 30 years ago,” CJ Samadder said. Thus, since the early stages of vaccination as a preventive tool against various diseases, the coercive element of vaccination has been not only discouraged but also regularly ruled against by the courts for more than a century.”

CJ Samadder concluded after further discussion on considerations related to forceful vaccination and rights to personal liberty under international law, “Therefore, the right to and the welfare policy for vaccination can never affect a major fundamental right; namely, the Right to Life, Personal Liberty, and Livelihood, especially when there is no reasonable nexus between vaccination and prohibition of the continuance of occupation and/or profession. A careful and purposeful reading of the law, as well as the principles of equity, a good conscience, and justice, demonstrates that forced or coercive vaccination has no legal basis, making such actions vulnerable to be found ultra vires ab initio”.

Conclusion

Many employers are likely to highly recommend vaccination without mandating it. Employers will have to cope with a portion of the workforce that is completely vaccinated and a small number of people who are not vaccinated and have no intention of doing so in the future if they want to return to the physical workplace. In such circumstances, it will be difficult for organisations and HR to maintain a smooth operation. After all, fully vaccinated employees may have a hard time getting along with those who are not vaccinated. Several progressive employers have organised workplace vaccination camps, as the company gradually reopens its offices in India over the next few months, it is in the employer’s best interest to ensure that the majority of its workforce is vaccinated.

References


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