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COVID-19 Middle East: Can employers require their employees to be vaccinated?

  • Market Insight 07 February 2021 07 February 2021
  • Middle East

  • Coronavirus

As the COVID-19 vaccines are rolled out to the general population within the GCC, many employers are currently considering the options open to them to require employees to take a vaccine as part of their overall business operations, to manage the health and safety of employees, as well as their underlying customers and clients. Within this article, we consider the implications of the vaccine roll out for employers and employees across the GCC.

Background

All GCC countries have started to provide COVID-19 vaccinations to nationals and expatriate residents free of charge. Given the large proportion of expatriate employees in the region (and the desire to regularly travel back to their home country), this is a welcome move both from a humanitarian and public health standpoint.

This article addresses the labour and infectious diseases (or equivalent) laws across the GCC jurisdictions. It does not consider the laws in the Dubai International Financial Centre, the Abu Dhabi Global Market, and the Qatar Financial Centre.

This article was updated on 7 February 2021.

Can an employer's directive to take the vaccine be a reasonable instruction?

Given that the GCC authorities have not yet made the COVID-19 vaccination mandatory, apart with the exception of government authorities and the healthcare sector,  employers cannot legally force their employees to take the vaccine and it will therefore ultimately be an employee’s choice as to whether they take the vaccine or not.

Notwithstanding this, employers across the GCC have an obligation to protect the health and safety of their employees in the workplace and provide a safe working environment. In light of this, employers could argue that an employee’s refusal to take a vaccine would result in the employer breaching its obligations to its employees. Employers also have an obligation under regional infectious diseases laws to put in place internal processes to prevent the spread of COVID 19 generally; vaccinations will need to be considered in this context.   

Employees in each of the GCC countries have a duty to obey the lawful and reasonable orders of their employer, and where an employee refuses to follow a reasonable instruction, the employee may be subject to disciplinary action including termination of their employment.

Whether or not a request by an employer for an employee to be vaccinated against Covid-19 is reasonable will need to be considered on a case by case basis. Some employees given their health generally may be advised not to take a vaccine. 

Requiring doctors and front-line workers to be vaccinated, and disciplining them (including dismissal) if they do not, is likely be reasonable due to the high-risk nature of the work, and the fact that being vaccinated in these circumstances is essential to prevent the spread of the virus and protect their patients. Likewise, if the workplace or site is accessed by vulnerable members of the community, an employer may be justified in requiring staff working at that site to have the vaccine.

However, for employees who work in an office, or have limited contact with other individuals, it may be more difficult for an employer to show that the instruction is reasonable. In such a case, the employer is likely to have to objectively justify why that direction is reasonable and necessary:

  1. given the nature of the employee’s role; and
  2. taking into consideration any of the mitigating measures that have been implemented by the employer already to prevent the spread of COVID-19 (e.g. sanitisation, social distancing, face masks etc).

A key factor which could motivate an employer's request for employees to receive the vaccine is if a client makes it a contractual provision of its service agreement or commercial agreement for employees providing services to it or entering its premises to be vaccinated. In such circumstances, an employer may have to redeploy employees who refuse to take the vaccine or consider a restructure.

Making it a contractual term of the employment to take the vaccine

Where an offer of employment is made to a prospective employee, an employer can include a requirement to take the COVID-19 vaccination in its contractual terms. Arguably, failure of the prospective employee to subsequently provide the employer with a vaccination certificate would amount to a breach of contract pursuant to which the employer could proceed to terminate the employee’s employment if it had already started, or void the employment contract if it had not. Applying a probationary period would also be important to enable termination if any conditions are not met

However, in respect of existing employees, introducing a contractual requirement to take the COVID-19 vaccination would normally require the employee’s consent before implementing.

Obtaining employee consent can be challenging. There is always a risk that an employee will reject the employer’s proposal.

Can failure to take the vaccine justify termination of employment?

It is clear that there is a conflict between the employer’s obligations to health and safety of its employees versus an employee’s right to choose whether or not to be vaccinated, and it remains to be seen as to how the labour courts will consider this conflict in cases where an employer has terminated an employee’s employment for refusal to take the vaccine.  

Where the employee’s employment is terminated for a reason considered unfair or arbitrary by a court, the court can award compensation as a result (although some GCC jurisdictions do permit an employer notice for no reason). Whether the reason for termination is considered unfair by a court would be considered on a case by case basis and therefore legal advice should be sought in advance. 

It is possible that where an employer can justify its requirement for its employees to take the COVID-19 vaccination (including attempts at redeployment across the employer’s workforce that minimises the requirement to take the COVID-19 vaccine), the labour courts may not award compensation (or may award less) to the employee.

Ongoing obligations

The GCC authorities have confirmed that despite the fact that the vaccine has started to be administered, this does not mean that social distancing and other protection measures can fall away.

It is likely to take a significant period of time before the bulk of company workforces have been vaccinated and as such, employers must continue to ensure that they have taken all of the necessary health and safety measures recommended by the authorities for the workplace and any specific measures required for the employee’s role. For example:

  1. social distancing;
  2. providing masks and gloves for employees to wear at work;
  3. providing hand sanitisers, tissues, and washing facilities as well as disinfectant sprays so that desks can be wiped down;
  4. displaying signs regarding good hygiene practices and best practice re prevention of the spread of COVID-19; and
  5. enhanced/deep cleaning of premises and sanitisation of the office, workspaces and communal areas.

Conclusion

As can be seen from the above, an employer must be cautious when considering imposing a mandatory vaccination requirement.

The requirement to take the vaccine should be considered on a case by case basis with respect to each employee’s personal situation (including their medical history) in addition to their role, and the levels of risk of contracting or passing on the virus in the workplace. It would be sensible for employers to also consider alternatives, such as redeployment or working from home.

End

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