COVID-19 vaccines and employers’ liability – a global approach
This article was co-authored by Shubhangi Pathak, Tuli & Co, Kennedys' associate office.
With many countries now vaccinating and looking to lift lockdowns, the question on everyone’s lips seems to be “can employers require their employees to vaccinate?”. In this article, our experts based in Denmark, the UK, US and India look to provide an answer from each of their respective jurisdictions, and thereafter forecast the potential COVID-19 employers’ liability claims we can expect to see in the future.
Denmark, Norway and Sweden
In Denmark, the COVID-19 vaccine will be offered to all citizens from the age of 16, with the estimated completion date being the end of June 2021. In Norway, vaccines will be offered to citizens over the age of 45 and those between the ages of 18 and 44 with an underlying condition. The estimated completion date for the nine risk groups is the spring of 2021. In Sweden, all citizens from the age of 18 will be offered a vaccine with the estimated completion date being the end of June 2021. For all three counties the vaccine is free and voluntary.
There are a number of employers’ liability claims underway but no court decisions have yet been handed down. With regard to public liability claims, the first award of compensation was made last month following a decision by the Danish Patient Compensation Association, Patienterstatningen, that the family of a 91-year-old woman who became infected and died with COVID-19 in a nursing home was entitled to compensation. This is the first time that Patienterstatningen has recognised the COVID-19 infection as a “patient injury”. The decision in principle will therefore lay the groundwork for other cases of infection.
In Denmark, employers can require employees to be tested for COVID-19 if it is objectively justified in order to limit the spread of infection, but employers are not allowed to require employees to be vaccinated. However, if an employee is prevented from performing their job as a result of refusing to have the vaccine, it cannot be ruled out that this may have consequences for their employment, including termination of their contract. As an example, this could be the outcome if a dental assistant does not accept the vaccine and thus is not able to provide assistance to the dentist they are working with due to the risk of being infected.
The UK secured early orders of 367 million doses from seven vaccine developers. Under a dramatic acceleration of the roll-out, the goal is for all adults to be offered the vaccination by the end of July 2021.
In the UK, the vaccine is also voluntary. Arguably inoculation is job critical for those working in healthcare, due to the obvious heightened risk of exposure. Similarly, in social care settings, it could be argued that workers who have not been vaccinated could put the most vulnerable in society at risk. As such, there is a much stronger rationale behind mandating the vaccine for these workers.
Some companies have recently announced plans to bring in a ‘no jab, no job’ clause into employment contracts for new staff, thereby contractually obliging individuals to be vaccinated. Employment lawyers have advised this policy is risky and fear the prevalence of discrimination claims if individuals are not hired due to their refusal to be vaccinated.
For existing staff, current employment contracts are unlikely to include the necessary provisions to enforce a ‘no jab, no job’ rule, leaving employers encouraging rather than requiring vaccinations. However, in addition to amending contracts for new staff, some companies such as Pimlico Plumbers have indicated an intention to modify the employment contracts for all existing employees in order to introduce the “no jab no job policy”. Such a move could result in claims for unfair or constructive dismissal if employees refuse to agree such contractual changes and are then dismissed or choose to resign.
We can expect to see claims arising out of lack or inadequate Personal Protective Equipment (PPE) and claims relating to the failure to enforce social distancing policies and to provide appropriate hygiene facilities. Reduced staffing, use of unfamiliar agency staff and increased workload will all be major factors. But what may have been deemed ‘reasonable’ in all the circumstances in March 2020 will be different to that which is deemed reasonable now.
Similarly, we anticipate seeing workplace stress and psychiatric injury claims, especially from front-line workers. Any negligent exposure which has resulted in long-COVID also have the potential to become expensive claims given we do not yet know the prognosis and long-term effects of this disease.
Those dealing with ongoing claims should also consider what impact COVID-19 has on existing claims. Where there are ongoing future losses, it may be possible to argue that the claimant would have suffered a loss of income or increased care needs as a result of COVID-19. In Kim v Lee  a libel case, Mrs Justice Steyn’s assessment of damages allowed the defendant to argue such a reduction for loss of earnings, albeit relatively minor in this instance.
In the US, there was no centralized plan for a uniform roll-out amongst the 50 states and so each state was left to its own devices as to who to prioritise and how to get vaccination programs up and running.
Under the new Biden administration in conjunction the three approved vaccine providers, Pfizer and Moderna, and now Johnson & Johnson, production and delivery has ramped up. To date, 62 million vaccination doses have been administered and the expectation is that by March 2021, there will be approximately 3 million injections administered each day. Now that the US Food and Drug Administration has approved the Johnson & Johnson vaccine, we are likely to see an additional 100 million doses made available by 30 June 2021, totalling 300 million.
The vaccine is likely to be mandated by many employers in time but with caveats to make reasonable accommodations for employees with disabilities or religious beliefs that prevent them from getting the vaccine. Once vaccines are readily available, employers can likely require proof of a vaccination from employees in order to continue working for the them. Further, if an employer incorporates a mandatory vaccination policy and an employee refuses to comply, their contract may be terminated.
The Americans with Disabilities Act  (ADA) prohibits employers from conducting “medical examinations” of employees. However, employers can take steps to ensure that no employee poses a “direct threat” to the workplace. Notably, in March 2020, the Equal Employment Opportunity Commission (EEOC) determined that COVID-19 does indeed constitute a direct threat and on 16 December 2020, the EEOC confirmed that the vaccination is not a medical examination. The consequence being that employers can require their employees to be vaccinated, with certain caveats.
If employers wish to offer the vaccine to their employees or require their employees to have a vaccine from a third-party, they must make clear that both the vaccination and the decision to answer pre-screening questions related to the vaccination are voluntary.
The 2020 EEOC guidance provides somewhat of a paradox. The EEOC seemingly acknowledges that employers can mandate vaccinations, while the FDA requires that vaccine recipients be informed that receiving the vaccine is optional. However, the statutory Emergency Use Authorization (EUA) requirements do not address an employer’s ability to require vaccination. Additionally, the EEOC did not state in its guidance or anywhere else that the FDA mandated statements affect an employer’s right to require the vaccine.
In terms of personal injury claims arising out of exposure to COVID-19 or at least the allegations of exposure, there are several hundred pending lawsuits already filed with more, including class actions, to be expected. Such a large number of claims has led many insurers and businesses to call for immunity or liability shield laws to be passed to protect companies, especially small businesses. Federal immunity was considered in the last congress but did not pass, and it is less likely now with the new administration. Some states have moved ahead regardless and to date, 16 states have instituted some form of protection. Many of the cases will be prosecuted under the Workers Compensation laws in the US which preclude direct suit against one’s employer including for COVID-19 exposures but allow for administrative proceedings whereby an exposed employee can recover for medical bills and lost wages only.Finally, proving where and how an individual was exposed to COVID-19 may in and of itself serve as a bar to extraordinary damages being awarded in litigation cases due to the lack of contact tracing and testing in the US.
India’s vaccine programme was launched on 16 January 2021 with the goal of vaccinating 300 million people by August 2021. The programme consists of the Indian variant of the vaccine developed by the University of Oxford and AstraZeneca and the Covaxin vaccine.
The first phase which is now fully underway covers all health and frontline workers – about 30 million people – including doctors, nurses, police officers. The next phase of the roll-out will target citizens over 50 years old and those who have underlying comorbidities.
All vaccines are voluntary, free of charge and are being administered at government hospitals. Later, possibly this summer, citizens may be able to pay for vaccines at private hospitals and clinics.
The Ministry of Health and Family Welfare has recently issued FAQs clarifying that vaccination for COVID-19 is voluntary and consequently, an employer cannot require compulsory COVID-19 vaccination for its employees. As such, the refusal to be vaccinated is unlikely to be a sufficient ground for termination of an employment contract. This would of course need to be closely examined for specific circumstances, the sectors in which such employees are engaged, and also government policies relating to vaccination.
Typical employers’ liability policies include cover for employment practices liability cover/third-party liability cover for losses arising from a wrongful employment act or wrongful discrimination act. Wrongful employment acts are typically defined to include “Workplace Harassment” and as such, claims could arise in the event an employee claiming against the employer for being coerced into having the vaccine and subsequently suffering an adverse reaction. We are yet to see whether such claims will be made under these policies.
The COVID-19 pandemic has required employers to consistently adapt to a rapidly changing environment. To date, only employers in the US have the legal right to mandate that their employees receive a COVID-19 vaccination, although many are unlikely to do so because of the risk to reputation, and potential legal and cultural backlash. We believe it very unlikely that Denmark, UK and India will follow suit. Regardless, all employers should ensure that they provide a safe working environment and re-review their current policies to ensure they are up-to-date with current laws and regulations in order to mitigate the risk of employers’ liability claims.