“Will All Employees Be Vaccinated?”, and Other Good Questions
The Indian government has recently approved vaccines from Bharat Biotech and Oxford / AstraZeneca. For employees and employers, it means that Back To Workplace in the new normal will become a reality. As a sigh of relief unfolds thanks to the creation of a new COVID-19 vaccine, questions still remain.
Here are the top burning questions on COVID-19 vaccine that address workplace concerns:
Can the COVID vaccine be mandated by an employer?
No. There is no regulatory or government-imposed rule or requirement that currently exists in this regard. Hence, it is not legally possible for the employer to mandate a COVID vaccine to the employees.
Will there be a potential for legislation that will allow such a mandate?
Currently, there is no such legislation and it seems unlikely. The reason being that it will be considered from the constitutionality perspective. Added to that, challenges surrounding vaccination for a highly populated and labour-intensive country like India needs to be considered by the government.
Can an employer find out whether an employee has been vaccinated?
The vaccinated individual may receive an official SMS communication and QR code confirmation from the authorities regarding the status of vaccination. However, an individual’s ‘medical records’ and ‘health conditions’ are categorized as sensitive personal data or information (SPDI) as per data privacy rules. The employer must comply with the data privacy requirements including obtaining employee consent.
In absence of a legal mandate, what are legal ways an employer can encourage COVID vaccination for its employees?
The employer may encourage employees for COVID vaccination by various ways including spreading awareness through training and posters, organizing medical camps, providing paid time off / leave (in case of any immediate side-effects), providing medical insurance cover for any future side-effects, subsidizing the cost of vaccination, providing incentives or gifts, prohibit official travel, set personal examples, etc.
Can employees be refused office premises entry without showing proof of vaccination?
Yes. In such a scenario, it is up to the employer whether they want to continue providing remote working benefits.
Similarly, can the employee lawfully refuse to come to the office since he/she has not been vaccinated?
It may not be possible for an employee to refuse to come to the office on the basis of not being vaccinated, if working from office is a condition of service. The employee may however request and the employer may in limited circumstances (such as medical reason) continue to allow the employee to work from home.
What about employees who cannot be vaccinated due to medical history or condition?
This depends on a case-to-case basis with the help of medical advisors. There are no clear answers as of now.