Legal Outlook World@Work special: transcript

Transcript

Stephen Woodbury:

Hello and welcome to this special world at work episode of Ashurst legal outlook. My name is Stephen Woodbury, I'm the global practice head of Ashurst's Employment Group. In this episode I will be speaking to my Ashurst employment colleagues across the globe to discuss the current COVID-19 vaccine rollout. And in doing so, we will look at the differences between jurisdictions, issues which have arisen, and how these are being managed.

Stephen Woodbury:

And I'm delighted to have joining me a number of partners from our global employment team, Crowley Woodford from London who also leads our European employment practice. Muriel Pariente who heads up our Paris team. Dr. Andreas Mauroschat who leads our employment, IT, data protection and compliance practice out of Frankfurt in Germany, and Diana Rodriguez-Redondo, our partner in charge of our Madrid employment practice. Welcome to all of you and thank you for joining me.

Stephen Woodbury:

So let's get started and I hope you enjoy the discussion. Just a short recap, it seems extraordinary to think that only a little over 12 months ago the world was on the edge of a global pandemic, which would change almost every feature of our lives, personal and work and of course from a health perspective, with governments and businesses having to react and deal with the impacts of the spread of the virus on the run with no guide book or precedent to follow, at least in terms of the scale of what we were witnessing.

Stephen Woodbury:

So it's not surprising that the level of anticipation of the vaccine becoming available grew throughout the course of 2020, such that when it finally arrived in late 2020 the expectation was high that the rollout would be speedy, efficient, and seamless.

Stephen Woodbury:

Well, we are about to hear that the experience to date has been mixed across different countries, as has been the approach to the rollout and impacts on the workplace.

Stephen Woodbury:

But there are some common features which will be touched on. Fortunately, the major vaccines to date are proving to be both safe and very effective. Most programs are being managed by governments with higher risk groups being vaccinated first, including the elderly and health and aged care workers, but the delegation of government responsibility for coordinating vaccination programs and then who can actually administer the vaccine, that is where you can get it and from whom, varies between countries. And we'll hear a bit more about that.

Stephen Woodbury:

Whether vaccination is mandatory or not, of course is something that most governments are steering clear of, some leaving it to employers to manage, others actually stating that employers cannot make it mandatory, but all governments are encouraging and facilitating access to vaccinations to ensure that the numbers are as high as they possibly can be. The star performance to date include Israel, which hosted the pilot program for the Pfizer vaccine.

Stephen Woodbury:

Chile's well-advanced and the United States seems to have led the pack in every way through this pandemic, both in cases and now vaccinations as well. Now we'll come to our panel in a moment, but just briefly I'll touch on the position in Asia and Australia. The Asian rollout has steadily been increasing, led by China and India, both of which are producing vaccines locally. They're also supplying to nearby countries as well so other countries are coming along.

Stephen Woodbury:

And Singapore is making solid progress as is the Philippines. And they're not experiencing too many issues, noting that in Asia the experience of responding to and managing a viral infection and various waves of it has been greater than other parts of the world after SARS and MERS et cetera in the last decade or so.

Stephen Woodbury:

In Australia, the vaccination program has only just started and is some way behind the other countries.

Stephen Woodbury:

Australia has benefited from waiting and watching how things have unfolded elsewhere in the world. So that's the position briefly in Asia and in Australia, let's do a walk around Europe and I'll start with Crowley in London. I'm not sure Crowley, whether I can call you from Europe now, but that's a different topic. We're all hearing good things out of the UK. Should we believe the hype?

Crowley Woodford:

Thanks Stephen. Well, yes I think you should actually, the vaccine rollout in the UK has so far I think been a roaring success. Just over 22 million people have had their first dose of the vaccine and over a million people have had their second dose. And the UK strategy is clearly to protect as many people as possible as quickly as possible.

Crowley Woodford:

And they've done this primarily by leaving a 12 week gap between the first and second dose of the vaccine. Vaccines are being given according to a priority list developed by the government. As you've already mentioned Stephen, this is based on age and underlying health conditions, and in the UK we're moving speedily down that list.

Crowley Woodford:

We're on track to meet the UK's target date of the end of July to offer a first jab to all adults over the age of 18. In order to achieve that target, our chancellor, Rishi Sunak, in the UK budget last Wednesday, announced an eye watering extra 1.65 billion pounds and will make that available to help the vaccine rollout.

Crowley Woodford:

The UK's vaccine minister, Nadhim Zahawi, has confirmed that March will be a very big month for the vaccine rollout in the UK. This is primarily because the groups who were first vaccinated in January are now due their second dose, and the program rollout for those first jabs is continuing to pick up speed.

Crowley Woodford:

Finally, it's probably worth mentioning that the UK's independent expert advisory committee, which is advising on the vaccination program, has recently confirmed that the rollout in the UK will continue to be age-based and that occupations such as teachers and transport workers, where there's been a lot of lobbying for them to be prioritized, will in fact not be, and they continue with that age-based approach.

Stephen Woodbury:

Thanks Crowley. And just in terms of the availability of the vaccine and the remarkable success, is the vaccine readily available in the community, do you have to go through a doctor for example? Or how are people able to access the vaccine in the UK?

Crowley Woodford:

I guess the UK in particular is well-suited for this type of massive project rollout from a healthcare perspective because we have the NHS which is a natural framework for that. But in addition, the government, as well as using hospitals, have set up core centers, turning stadiums and race courses into massive vaccination centers. And they're also tapping into more localized vaccination centers through the major pharmacies. So there are plenty of facilities and also localized engagement to ensure the vaccine is distributed as fast as possible.

Stephen Woodbury:

Very, very good. Let's jump over the channel or through the tunnel to Paris, and Muriel, how is Paris and France fairing? Let's not compare you to the UK, let's just hear how France is going.

Muriel Pariente:

No, because maybe we are still in Europe, that's maybe the point. Yes, we are not doing very well to be honest. There is also in France the same situation as in London and in England, the vaccination has made by... On priority as groups. And at the moment COVID vaccination is only open to people over the age of 75, people over the age of 50 with co-morbidities, people who are particularly vulnerable due to serious [inaudible 00:07:48] and health professionals.

Muriel Pariente:

Just to give you some numbers, as of today, 4 million people have been vaccinated in France, which represents I can say almost 6% of the population. And 2 million people have already received the second dose.

Muriel Pariente:

So the situation is not really good, but two new measures have been taken by the government recently and I guess this measure will improve the situation. First of all, as of February 25, occupational health services are also able to administrate COVID-19 vaccine to employees from 50 to 64 years old presenting co-morbidities. In this regards employers should inform all employees of this possibility.

Muriel Pariente:

And not only employees for [inaudible 00:08:46] requirements as medical confidentiality prevents the employer from accessing such information, which is really important in France. Meaning that voluntary employees must then get in touch with occupational health services, being pointing out again that the process must ensure the confidentiality of medical data.

Muriel Pariente:

Therefore the employer cannot learn which employee has or has not been vaccinated, and I get the situation is different from other countries.

Muriel Pariente:

Just one point regarding this measure, I've been in touch with one of my client this morning, and she said to me that for the moment it was very, very difficult to get an appointment with the occupational services. They are still waiting for the answer. So I'm not sure it's really working but I guess it will be in the future months.

Muriel Pariente:

And the second measure, which has been taken by the government here to speed up the vaccination rollout is from a decree issued last Friday, which authorized pharmacists to administrate the vaccine. And they should receive the vaccine dose on March 15. So this is two important measures. The government say that normally in July more than 30 million of the population will be vaccinated. I don't know, let's see.

Stephen Woodbury:

Thanks Muriel. Yes, it seems as though France is moving steadily, slowly but steadily, hopefully towards better vaccination numbers. And Andreas, let's turn over to Germany. Is the usual German efficiency coming to bear in relation to your rollout?

Andreas Mauroschat:

Thanks, Stephen. I have to say not quite actually, unfortunately I guess the situation is similar as in France. So the public opinion is actually quite an unhappy about the vaccination process so far, which is perceived to be... Well, put it mildly, fairly slow compared to some other countries, avoiding to look across the channel where the grass is much greener in the UK.

Andreas Mauroschat:

So we've started in December last year, vaccinations are being carried out under the authority of each of the 16 federal states. So there's also differences between the states in Germany, in respect of efficiency. We vaccinated about five and a half million people, approximately six and a half percent of the population. So similar to France actually and similar to most of the EU members states, because they receive the vaccine based on distributions by the EU largely so far.

Andreas Mauroschat:

We have, regards to the order of vaccinations, also a structured process, very similar to France, with three priority groups based on age, health risks and certain job exposure risks. At the moment we're still working our way through the highest priority groups, which includes people over the age of 80, medical staff and other critical professionals.

Andreas Mauroschat:

Now to end on a bit more upbeat note, we are all hoping that the process will become much quicker. As of 1st of April local doctors and company doctors will be permitted to do the vaccinations as well, and vaccine will be delivered through the normal channels to our local doctors. So that should help a lot.

Andreas Mauroschat:

And our government has promised that the latest in April we will be up to 10 million vaccinations per week, which sounds good. And we'll see where that will be going, whether the efficiency is back or not.

Stephen Woodbury:

Thanks, Andreas. I'm not sure if this is an area to over- promise on, but we'll see how Germany goes with interest. Let's turn down to Diana in Madrid and Spain which was one of the first countries in Europe really to start getting a lot of cases. Diana, how have the Spanish government been handling the vaccine rollout?

Diana Rodriguez-Redondo:

Well, I would say that similar to Germany and France. We are... Well, people will say that... Not that I will but I have to say that still we are progressing. So vaccination [inaudible 00:13:17] follows three stages in Spain. Stage one, to resident in [inaudible 00:13:24] early-care facilities, frontline health professionals and people with severe disable. And these stage has been completed.

Diana Rodriguez-Redondo:

Now we are in stage two with people over 80 years old, the second line health staff, social workers, and then it will go with people between 70, 79, going down until 45 to 55. Stage three, we know that it exists but it's still to be announced. So we do not know what is it about. As I say, now we are with people over 80 years old being vaccinated, AstraZeneca's vaccine is given to health care workers, [inaudible 00:14:05] workers and police, firefighters and teachers under 56 years old because it hasn't been approved for people older than 56 years old in Spain.

Diana Rodriguez-Redondo:

And so the next groups to be vaccinated with Pfizer and Moderna will be people from between 70 and 79 years old. And the next group with AstraZeneca will be people from between 45 and 50 years old, where I am, so I hopefully will be back to [inaudible 00:14:35] soon.

Diana Rodriguez-Redondo:

Registration is not required to access the vaccine, so it is a health service who will contact to the people to be vaccinated following the established order of prioritization. I have to say that my dad got his call today so he will be vaccinated next week, and we are really happy for that.

Diana Rodriguez-Redondo:

So as of today, 4.5 million people have been vaccinated, of whom 1.4 million have already received the second dose.

Stephen Woodbury:

Thanks Diana, that sounds like things are progressing relatively smoothly and orderly in Spain, which is good to hear. One of the issues from an employment context obviously that has been arising and is of interest obviously to employers is whether or not people can be compulsorily required to vaccinate.

Stephen Woodbury:

So whether it's mandatory or not, or whether because of work requirements employees can be required to vaccinate. And Diana, I just thought it'd be useful to maybe find out through Spain and particularly with the European convention on human rights as to how that issue is being managed in Spain. So whether or not it's compulsory or an employer can require people to get vaccinated.

Diana Rodriguez-Redondo:

Vaccination in Spain is not mandatory and neither is COVID-19 vaccines. However, there are some exceptional situation in which public authorities may impose a compulsory vaccination. One of these exceptional situations could be in case of an epidemic where there's collective [inaudible 00:16:07]. Actually, there are precedents in Spain as in [inaudible 00:16:11] vaccination against smallpox and diptheria were implemented on a compulsory basis.

Diana Rodriguez-Redondo:

In this case, the [inaudible 00:16:21] should be nationally approved by law. And I have to say that this is not a peaceful question as there are certain renowned Jews who understand that making vaccination obligatory will be contrary to the Spanish constitution. So far, it is not obligatory in Spain. As far as compatibility with the European convention of human rights is concerned, it is a balance between the right to privacy, which is [inaudible 00:16:50] by Article 8 of the convention, and the protection of public health on the other hand.

Diana Rodriguez-Redondo:

So as early as in 1984, the European Commission of Human Rights stressed that the obligation to undergo medical treatment or vaccination on the pain of penalty may constitute an interference with the right to respect for private life. But the same time such interference may be permissible under same article, point two, when it is carried out in accordance with the law and is necessary in a democratic society in the interest of public safety for the protection of health.

Diana Rodriguez-Redondo:

So the European Court of Human Rights uses two criteria to assess the necessity of such interference in a democratic society. One, public health consideration requiring the control of the spread of infectious diseases and two, their assessment of whether the necessary precautions have been taken with regard to the appropriateness of the vaccination for the individual case in question.

Diana Rodriguez-Redondo:

For sure, the [inaudible 00:18:00] caused by the outbreak of the pandemic could be qualified as a public health consideration regarding control of the spread of infectious disease. However, it is in any case necessary to assess whether the legitimate objective of public health protection can be achieved by less intrusive means, for instance, with a compulsory vaccination only of in a specific age group. And in any case, as I said, it is also necessary to carry out a prior analysis of the suitability of vaccines for each individual.

Diana Rodriguez-Redondo:

But yes, under these premises I must conclude that the compulsory vaccination measure would indeed be compatible with the European Convention of Human Rights.

Stephen Woodbury:

Yeah, thanks Diana, that's really interesting. And obviously those principles apply across Europe, but obviously most countries in the world who have similar legislative basis for privacy, et cetera, will obviously be interested in the approach that's being taken in Europe.

Stephen Woodbury:

And for employers obviously this is a critical issue. Allied with this is actually the privacy considerations, so it's one thing to be able to say to an employee, "Yes, we would require you to get vaccinated for health reasons related to your job," but then there's a separate question necessarily as to whether or not we can get access to the information, the data that might support as to whether or not someone has actually been vaccinated.

Stephen Woodbury:

And Andreas, from your perspective, considering the GDPR, considerations employers need to keep in mind, how should they approach managing these?

Andreas Mauroschat:

Yeah, I guess it's fair to say that COVID has tested the boundaries of our traditional GDPR concepts and in some respects actually quite unusual standards have been applied to come to practical results here. Take a look at a couple of highlights and start with a simple, but not so simple basics.

Andreas Mauroschat:

So generally any information collected in connection with COVID which allows to identify a specific employee directly or indirectly, such as COVID tested, contact persons an individual has had, travel behavior and so on, is obviously personal data. However, it's not so easy to say that all COVID data is also sensitive data. Actually only data which directly relates to a COVID diagnosis or certain COVID symptoms such as body temperature for example, that type of data is health-related data and therefore subject to special protection under the GDPR.

Andreas Mauroschat:

On the other hand, information about a negative test result is not [inaudible 00:20:48] data. As an employer obviously we have to differentiate between the two categories and that has practical, quite severe practical impacts. We'll get to that in a minute.

Andreas Mauroschat:

So Stephen, you were raising the issue of collecting the data for employees. Employers may require employees to disclose if they are infected. They may also ask them if they've been in contact with an infected person or traveled to a risk area, that already is an exception to the fundamental data protection concept that employees are not required to disclose specific diagnosis or illness symptoms to their employer.

Andreas Mauroschat:

But employers on the other hand must keep the identity of employees who have disclosed to be infected confidential. Exemptions would only apply if the specific disclosure is required to protect others. For example, if an employee must be informed to have direct contact with an infected employee, and they can easily derive from the information who the individual is, you can't help it. So in that case, that indirect disclosure is permitted, but you can't in a targeted way disclose the identity of infected employees.

Andreas Mauroschat:

Further, employees are not required to tell their employer if they belong to a risk group. If they tell their employer to make sure that they are protected, the employer may process the data, but employees are not required to disclose to their employer if they have been vaccinated.

Andreas Mauroschat:

So the information available to employers can actually be quite limited, where employees determined to remain silent. Specific measures which directly interfere with an individual's freedoms like measurement of body temperatures or interviews asking about specific symptoms are not permitted across the board. They are permitted in specific working environments like close contact situations or working environments, but then again, if you do measure body temperature as an employer where you are permitted to do so, you are then not permitted to record and process the actual temperature data or other interview data.

Andreas Mauroschat:

You can of course take the appropriate measures such as sending the people with higher or increased body temperature home. And you may also record the related data, that indirect data that you have sent an employee home, but do not retain the actual measurement data in respect of temperature. So it is a bit of a jungle to navigate through.

Andreas Mauroschat:

So I guess in summary it's fair to say that outside of the general guardrails there remain many open questions for the future. And I have to say we live in interesting times for employment lawyers.

Stephen Woodbury:

Yes, I heartily agree with that Andres. Thank you for that, yes, I think this is a tricky area and one which will I think throw up a lot of surprises and questions as we move forward, particularly as the vaccination moves towards what the government would hope would be realistic targets, and possibly some employees and some people just are not getting vaccinated. Which moves us onto the next topic Muriel, which is at the workplace, how are the social and economic committees, the old work councils, dealing with or being involved in this process? Or are they at all?

Muriel Pariente:

It's really a good question and you will be surprised of the answer, because as of today, social and economic committees are not really responding to the vaccination rollout. Indeed, as I told you before, employers latitude with regard to COVID-19 is very, very limited. An employer cannot mandate vaccination and cannot either organize vaccination campaigns at the moment.

Muriel Pariente:

As such, social and economic committees do not have a substantial role to play in COVID-19 vaccination, which is beyond their scope of competence as long as it remains external to companies. So I can answer the question very clearly, which as you know it's not always the case. We have always the question from our client, do we need, do we have to inform, do we have to consult our social economic committees on several issues? But here, the answer is very clear at the moment.

Muriel Pariente:

Social and economic committees are not consulted on the vaccination rollout. However, things are changing. And because employers can from now inform their employees of the possibility to get vaccinated by the occupational health services, I assume it should be considered to involve SEC in a preventive and incentive role. And I'm sure knowing how the SEC's working in France that they will ask for that.

Muriel Pariente:

So I can say for the moment the situation is clear, but I guess maybe it's a little bit soon. And I would say also like Andreas, we should have lot of issues regarding this point in the future.

Stephen Woodbury:

Thanks Muriel. Yes, and I agree, and I think that will be the case in a number of countries, particularly where there's a strong union presence and particularly in some industries or sectors where the employers will be very concerned to make sure that their businesses can operate as efficiently as possible and that might require most if not all employees to be vaccinated.

Stephen Woodbury:

And then there's obviously that potential for questions, which the unions, SEC's might wish to play a role in. Which then leads on to another topic Crowley, which is just in relation to the rollout of the vaccine. And we've already seen some conjecture just in the press around not only whether or not people might be forced to or mandatorily required to get vaccinated, but also the circumstances in which people might refuse to be vaccinated. And discrimination issues which potentially arise in relation to how the rollouts are occurring. So I was wondering if you could just comment on that please.

Crowley Woodford:

Yeah, certainly. I do think that discrimination issues could arise if employers want to make vaccinations compulsory for existing employees. Normally as a precondition for them returning to work, if employers do go down this route then employees who refuse to be vaccinated and have protected characteristics under the UK's Equality Act, they could potentially bring discrimination claims.

Crowley Woodford:

And if this happens then any employer that adopts that approach would have to objectively justify it's compulsory vaccination policy. For example, employees who have medical conditions such as severe allergies or immune disorders, or even a fear of needles, may refuse to be vaccinated. And if their particular medical condition [inaudible 00:28:14] to a disability in law then they're going to have the protection of the UK's disability discrimination laws.

Crowley Woodford:

Employees may also object to having the vaccine on religious grounds. This could be either in principle or because the vaccine's been prepared in a way which breaches particular tenants of their religion. And the list of course could go on and extend for example to vegans who might also object to the vaccine if it's been prepared using animal-based products.

Crowley Woodford:

Certainly there has not yet been a case in the UK on whether anti-vaccine principles in themselves are a protected belief. I would have thought that this is going to be unlikely, but of course at this stage you can't rule anything out. Basically, I think in my experience so far it's that employers are taking the lead from the government and they're not making the jab compulsory.

Crowley Woodford:

So discriminations are not arising in practice at the moment. It's certainly an area of interest to employers and we're getting lots of inquiries about that, but ultimately employers are keen to ensure that their workforces are protected. But at the moment they're largely adopting the approach of support, information and encouragement to have the vaccine.

Stephen Woodbury:

Thanks Crowley. Yeah, and I think that that position seems to be common across a number of countries. In Australia, similarly the authorities, the government, have not made the vaccination compulsory. And I suspect that's as much for political reasons as any others, but really what they've done is leave it to employers to work through the issue.

Stephen Woodbury:

So we then fall back to our... Effectively our common law position which is that unless it's a reasonable and lawful direction, which will obviously be a relatively limited circumstance in this case, then employers ordinarily would not be able to require an employee to be vaccinated.

Stephen Woodbury:

It'll be interesting I think to see where the bounds of that are. So we have had clients, particularly in the health care and aged care sectors, where vaccinations are required, and obviously there you could see that there'd be a sensible justification for that.

Stephen Woodbury:

I think where the boundary might be interesting in terms of the movement will be in other sectors where it might not necessarily be related to health considerations but more related to economic or operational considerations. And obviously some of the sectors which have been hardest hit by the impacts of the pandemic, particularly retail, hospitality, travel. For example, airlines, et cetera. As to whether or not requirements that they might see that would be appropriate to be put in place in relation to vaccinations might fall on the right side of the laurel or not in terms of any challenge.

Stephen Woodbury:

So I suspect those things are still a short way away at the moment, because at the moment certainly the strong sentiment is for people to be vaccinated. I think in every country there will be a number of people who are still uncertain or would not wish to get vaccinated, and as to whether or not that has flow-on implications for employment and their employers will no doubt be seen.

Stephen Woodbury:

So all of those issues I suspect are going to be cropping up in the future, and obviously for employers it's important for them to start thinking ahead and managing those contingencies now as to what their position might be, whether there are workarounds for example in relation to work that is performed and as to whether it can be performed in some other way without needing to be vaccinated as we have already seen obviously through the last 12 months. A lot of different and variable working circumstances have been put in place.

Stephen Woodbury:

That has been a very interesting discussion certainly for me, I've learned a lot, but unfortunately our time has come to an end. So let me now thank our panelists. Diana, Muriel, Andreas and Crowley. And to you our audience for listening, we hope you found it informative and interesting.

Stephen Woodbury:

You can hear more of Ashurst's podcasts, including our series Examining AI, by visiting Ashurst.com/podcasts. If you don't want to miss future episodes you can even subscribe now on Apple podcasts, Spotify, or your favorite podcast platform. While you're there, please feel free to leave us a rating or review.

Stephen Woodbury:

But for now, my name is Stephen Woodbury and on behalf of my co-panelists, thanks again for listening and goodbye for now.