Legal Outlook World@Work vaccine roll-out update transcript

Transcript

Stephen Woodbury:
Hello everyone, and welcome to part two of our World@Work podcast on the COVID-19 vaccination rollout. My name is Stephen Woodbury and the session we're about to undertake is where we look across a selection of countries and regions to examine not only how the vaccination rollout is going, but also what issues have arisen for employers to be mindful of as more and more employees become vaccinated, and government regulation in relation to the performance of work and employees and society in general changes.

Now I'm delighted to have joining with me our panelists. From Paris, Muriel Pariente, leader of our Paris practice. Over in Frankfurt, Juditha von der Heydt, counsel in our Frankfurt practice. In Madrid, Cristina Grande, who leads our Spanish practice. Over in Asia, Karen Mitra is joining us, who heads up our Asia Pacific practice out of Singapore. And finally in London, Ruth Buchanan will be joining us to talk about the developments in the UK.

Before we get to our panelists. I thought it'd be useful to set the scene just by looking at the vaccination rates globally, and be forgiven for thinking that that's all anyone's thinking about or doing at the moment. And it is indeed the case that over a billion people worldwide have been vaccinated, which amounts to around 13 or 14% of the global population. But the performance across the world has been mixed. When you break it down into the various regions, it's interesting to see that there are standout performers in most regions of the world.

In South America, Chile and Uruguay have close to 60% of people who are fully vaccinated. Over in the Middle East, they're doing pretty well, Israel, Qatar, UAE, all well above 50%. In Asia, a number of countries getting close to 50%, including Singapore, but Mongolia is actually the standout at the 6.6%. And in Europe, Hungary leads the pack in Europe at 54%, followed closely by the UK. We're about to hear a bit more about that shortly. And of course we are aware that in the United States and North America, both the States and Canada have been doing very well. Africa lags and will require significant global support to increase the levels of vaccination throughout the African continent.

And I'll just turn to Australia first before we move to our panelists. I'm sorry to say that Australia is lagging behind the rest of the world, as is New Zealand. We're at around 11 to 12% fully vaccinated, New Zealand's slightly better, which is a bit of a fall from grace given that in Australia, the perception was that we were doing quite well. But the Delta variant, which has cut across so many countries has hit Down Under, taken hold, and that's led to further lockdowns, further government regulation and restrictions across a significant proportion of the population, and that's had a flow on in relation to the performance of work and a lot more restrictions in terms of what work can be performed, work from home, stand downs and calls for greater levels of government support.

So we're a bit behind in terms of the vaccination rollout and that's becoming a significant focus of the government and obviously of employers. So from our perspective in Australia, that is certainly something which we are looking overseas to, in terms of the experience of a number of other countries, which is why this podcast is so timely, which leads me to look at... As I say, one of our star performers across the globe is the UK... And Ruth first to you. One of the first countries to purportedly break free of restrictions. How's it going? And more particularly, what do you expect to take place over the next little while, given the changes in the UK?

Ruth Buchanan:
Our return to normality in England started earlier this week on the 19th of July. You're right that the main reason that the government's taken this step is the successful rollout of the vaccination program, but we still have a large number of cases, heading towards about 50,000 cases a day unfortunately. However, the vaccination programme has weakened the link between testing positive and subsequent hospitalisation and death. The interval between the first and the second days of the vaccine has also been reduced from 12 weeks to eight. So the hope is that everyone over 18, should be double jabbed by mid-September.

The arrival of summer and the long school holidays have also influenced the government's now or never decision as these events act as natural firebreaks. So from the 19th in England, virtually all your restrictions have now been lifted. The government's no longer instructing people to work from home, where they have recommended a gradual return to the workplace. The one metre plus rule on social distancing has also ended, and face coverings are no longer required by law. Although the government does expect and recommend that people here will continue to wear face coverings in crowded and enclosed spaces like train.

And then the next main change that we have on the horizon is on the 16th of August in England. That's when we have a significant change to our track and trace system. At the moment here, you have to self isolate for 10 days if you're told to do that by our NHS at test and trace system. But from the 16th, we're moving to a different regime so that children or anyone who's fully vaccinated, if they have contact with someone testing positive, then they need to take a PCR test and only self isolate if it's positive. So that's just a general summary of why we've been able to move a little bit further in the UK.

Stephen Woodbury:
Thanks Ruth. And we are all watching with interest and I'll come back to you later to find out how that's translating through to the employment scene. Muriel, turning over to France. I think I just read about almost like the government possibly introducing a no ticket, meaning no vaccine, no play. Meaning you're not allowed to do certain things, which created a bit of controversy. How are things going in Paris and in France?

Muriel Pariente:
Absolutely, Stephen. The government has just created a health pass, which is called Pass Sanitaire in France. This pass mean that to gain access to set places, people over 12 years old we have to show proof of non-contamination with COVID-19, proof of full vaccination, negative PCR antigen test within the last 48 hours, positive COVID-19 tests of at least 11 days old and less than six months old. This pass will enable access to activities with large [inaudible 00:06:28] indoor and outdoor sporting events, cultural venues, casinos, festivals, trade shows.

President Macron simply announced that the letter will be expended as of 21st of July. It will become mandatory in France for all cultural venues and places of entertainment... Theaters, cinemas, festivals, concert hall... That are welcoming more than 50 people, as of beginning of August, it will become mandatory for cafes, bars, restaurants, even outdoor [inaudible 00:07:03] mall, hospital and travels. More place should be added to this list letter if necessary, depending on the epidemic situation.

Remote working rules has been eased since 9th June this year. Remote working is no longer mandatory and 100% of the working time anymore, but the employer must set a minimum number of days of remote working per week. Opening up for more business travel, the French government currently applies also a traffic light system with countries listed as red, amber or green. However, from 19 July France reinforced border controls for some countries subject to new rules. It now requires people not fully vaccinated and arriving from some European countries, Spain, Portugal, Greece, the Netherlands and the UK, to show a negative COVID test taken within the previous 24 hours.

Stephen Woodbury:
Very interesting, Muriel. In fact, the pass is something that many countries have been talking about. So it's good to see the French putting it into play, but I'm imagining though that there is a intent to increase the vaccination rate. Do you know what percentage of the population they're aiming for, Muriel?

Muriel Pariente:
Yeah, I guess more than 60. But to be honest, after this announcement, I guess one day, more than 1 million person asked for the vaccination. So I guess it is working, for sure.

Stephen Woodbury:
Yeah, I bet. I bet everyone wants to get to a cafe or a bar-

Muriel Pariente:
Or a restaurant.

Stephen Woodbury:
Yeah, exactly. All right. Very good. Thank you, Muriel. Juditha, let's go over to Germany... And I know there's been other issues to worry about with flooding, et cetera through Germany... But in terms of vaccination and the rollout, has that been continuing smoothly for the Germans?

Juditha von der Heydt:
Yeah, well, thank you, Stephen. In Germany, approximately 61% have already received the first vaccination and 48% of the Germans are fully vaccinated. The aim in Germany is to get as many people as possible vaccinated on a voluntary basis. As Germany, we're not introducing a legal vaccination obligation. With regard to restrictions the federal law popularly known as the federal emergency brake, which provided for very strict measures during the third lockdown, and such has restricted personal contact to one household and one other person, curfews, home office duty, school closures and shop closures expired on 30th June. And it's place has now taken by legislations of the individual federal states.

Depending on the legislation of the individual states and the incidents of the respective region, currently 10 to 25 persons are allowed to meet in public spaces, not counting vaccinated and recovered persons. And due to the currently very low incidents in all German regions, restaurants, shops, and schools are open again. There are no changes with regard to the obligation to wear medical masks in Germany, and to keep the distance of 1.5 meters in Germany. In order to avoid additional entry from infections from other countries, Germany has a strict entry regulation, which divides countries into three categories like basic risk areas, high incidents areas, and areas of virus variants of concern, and different rules apply to the respective areas when entering into Germany, such as testing obligations or quarantine.

Stephen Woodbury:
And just in relation to the obligation to wear masks. Can you just remind us again what those are at the moment?

Juditha von der Heydt:
Well, in Germany you have to wear specific masks like FFP2 masks, or masks which can be used for medical use, medical masks.

Stephen Woodbury:
I see. And do you have to wear them on public transport or indoors?

Juditha von der Heydt:
Exactly. You have to wear them indoors and on public transport, and also in open spaces if you can't keep the distance of 1.5 meters.

Stephen Woodbury:
Okay. So still there's some levels of restrictions?

Juditha von der Heydt:
Yes.

Stephen Woodbury:
Okay. Thanks Juditha, very interesting. Now let's turn over to Cristina in Spain and Madrid. Spain, Christina was one of the European countries hardest hit early on, but then managed to get things under control. So I was just wondering, how have you been going with the vaccination program?

Cristina Grande:
Thank you Stephen. In Spain, we have a bit more than 60% of the Spanish residents have had at least one dose of the vaccine, and almost 50% has the complete vaccination schedule. It expected that by the end of August, at least 70% of the residents will be vaccinated. The more relaxed measures now require, for example, face masks in open spaces when one and a half meters apart were linked to the decrease of the cases. But in the last weeks, there has been a peak of cases, about 200,000 cases in the last 14 days. This peak affects mainly those ages between 29 and 12, who are the population that has not been vaccinated yet. So in this scenario, Spanish government is planning to offer vaccinations to [inaudible 00:12:37] as soon as possible, and in any case before mid-September, when the school year starts.

And concerning test times isolate systems the recommendations continue to be to only have contact with those living in the same house and try to keep the safe bubble. Everyone who has symptoms or have been diagnosed must remain at home for at least 10 days. And in Spain, any leaver residents can carry out tests on the [inaudible 00:13:10] system, who will be the one monitoring it and will trace it's near context. But sadly, border controls as from 1 July, the European digital certificate has been implemented. And when traveling among European Member states, the holder of said certificate should be exempted from free movement restrictions unless they are necessary and proportionate to safeguard public health.

This certificate is not a requirement for free movement between the European Member States, but it's a measure to coordinate the movement restrictions with a view to the holiday season. In any case those with no European certificate or coming from a lot of French countries must submit a PCR negative test issued within the last 72 hours of the trip, or a certificate proving that they have been fully vaccinated within the last 14 days.

Stephen Woodbury:
Thanks Cristina. And in terms of work and people coming to work, is there any restriction on people coming to work, or are they required to work from home? I think I saw you were working in the office today. So is that common amongst everyone in Madrid now?

Cristina Grande:
It depends on their recommendations to work in the office. If it says that you must keep your mask on and the distance of one meter and a half, and the meetings cannot exceed in Madrid, eight people. So it depends in the workplace of it's company, the restrictions remain the same. There is not a more relaxed decision or resolution in that [inaudible 00:15:01].

Stephen Woodbury:
Okay. Thank you, Christina, for the update in Spain. And then turning finally on this round to Karen in Singapore. Singapore, Karen, was doing wonderfully well and then we read that it's just gone back down into lockdown. What's going on?

Karen Mitra:
That's right, Stephen. So in Singapore, the government has adopted the line, "Test, trace and vaccinate", but we're in the midst of some strict social restrictions here in the forms of bans on dining in, the imposition of work from home as a default and limits of two people on all social gatherings. We have a very low tolerance for cases here, which is part of the reason for the semi lockdown. And that really stems from the fact that the death rate for COVID-19 in Singapore is extremely low and it stands at just 36, and that's for the entire pandemic.

Turning to those three concepts that I mentioned, test, trace and vaccinate. Testing in Singapore is now undertaking very, very fast. Liberally and very extensively as we no longer test just for people who are symptomatic, but we also impose regular testing on those working in high-risk environments even after they've been vaccinated, and home testing was just introduced.

Contact tracing is really, really strong and it continues through both check-in and location data. Quarantine has now been extended to not only those who are close contacts of COVID positive patient, but also to their household members. On vaccination, we're actually going pretty well. So all residents of Singapore who are above the age of 12 are now able to receive vaccination, and we're likely to hit the 75% full vaccination rate by the middle of August. And that's for everyone over the age of 12, not just those over the age of 18. But we've maintained a really strict quarantine system for all entries into Singapore.

So prior approval is required for entry by all non-citizens permanent residents, but there are different quarantine requirements that apply for high and low risk countries. The approval system has allowed for the entry of foreign talent from low-risk countries who are often called the magic six, while still preserving hotel quarantine space for those in Singapore who've may been exposed to COVID-19. Given that their current caseload in Singapore remains relatively high by Singapore standards, and the fact that we've just hit the 50% mark for full vaccination, border controls remain extremely strict, and the social distancing measures that I talked about earlier are currently scheduled to remain in place until the 18th of August.

Stephen Woodbury:
Right. Okay. Thanks Karen. Well, it looks like a interesting period ahead for Singapore, which is a nice segue into the issues for employers and how a lot of the circumstances of the vaccine rollouts in the different countries have had an impact on the performance of work and particularly how employers are having to manage and deal with it. And Karen, we might stay with you in relation to Singapore, because as you said, there's going to be restrictions on-going through till mid August, at least. So, just interested as to what issues are coming up in the context of that, but more particularly beyond that as well?

Karen Mitra:
Sure. Thanks, Stephen. I'll start with vaccination status and the ability of employers to require vaccination, given that that's the main topic at the moment. And as we expected and foreshadowed at the start of the pandemic, the Singapore government has not left employees in a position where they have to determine themselves whether or not they will require vaccination. So the tripartite bodies comprising the Ministry of Manpower, unions and the Singapore Employers Federation have released a joint advisory setting out the circumstances in which employers can require vaccination. And that extends to circumstances in which they can require proof of vaccination, and also gives guidance to employers on how to deal with those employees who cannot or choose not to get vaccinated.

It's a bit of work there to be done in implementing that advisory, but at least employers are not left completely to their own devices of having to decide well, "Would vaccination be a lawful and reasonable requirement with respect to that particular role." As we move past the threshold for vaccination and start looking at the easing of restrictions with respect to office-based work, one of the big things that will be a challenge here will be the continuation of work from home arrangements.

So obviously while work from home is the default, limits on office space work are likely to be lifted as the vaccination rates increase. And Singapore doesn't traditionally have a long history of flexible work arrangements, so things like part-time work are uncommon and remote working was very rare before the pandemic. And so like in other countries, employers are going to have to finally balance any return to the office against a desire by employees, particularly those with caring responsibilities, to retain flexible work arrangements, against a desire by many to return to the office and also an underlying fear, particularly in Singapore that any moves to remote working in a longer term basis, will actually just lead to the offshoring of jobs to lower cost countries in Asia.

And finally, the thing that's particularly organizations with multi-national remit will be worried about, is border controls. And employers will need to manage issues regarding the inflows in and out of Singapore of ICTs and request them employees to travel to see family members or to contract a business abroad. The Singapore just lifted a current moratorium on requiring the payment of income tax for those who are currently in Singapore, but actually employed overseas. And as these types of moratoriums are lifted, and as border restrictions in other jurisdictions lift, I think a lot of employers here will need to be revisiting their current overseas working arrangements to make sure that there aren't tax and other implications with respect to those.

And finally, the thing that we have seen some employers being caught off guard by, is just having a difficulty in meeting their statutory repatriation requirements with respect to foreign workers. Particularly when it comes to countries that either capped inbound flights, even for citizens, or otherwise aren't able to be reached because of a ban on, for example, transit passengers.

Stephen Woodbury:
Thanks, Karen. Yeah. And there's some really interesting points there, particularly given Singapore's somewhat unique position in the middle of Asia as a bit of a crossroads, but particularly a place where expatriates and people move through, and previously done so with little restriction, and obviously there's a lot going into that as part of the COVID pandemic.

Turning back to Madrid and Cristina, Karen mentioned working remotely and work from home arrangements, and you referred to earlier the fact that depending on the work arrangements, you might need to continue working from home. How has the Spanish government been dealing with that, and other issues that employers need to be mindful of?

Cristina Grande:
The Spanish law concerning working remotely has been recently approved. I need to specifically distinguish two scenarios, working remotely due to COVID, and working remotely not due to COVID. In the case of working remotely due to COVID, this regulation establishes that employers are obliged to reimburse the expenses linked to working remotely due to COVID. So in some sectors, employers are already paying a lump sum to the employees versus say set expenses. These amounts run between 50 and 150 Euros. In many cases, many employers plan to continue with the flexible system, even after COVID. In this case, employers must be aware that if the employees work remotely more than 30% of their working time, that is more than 1.5 days per week from their home, a remote working agreement must be necessarily formalized between the parties, and this agreement must have a minimum statutory content, as otherwise the companies could be sanctioned with fines up to 6,250 Euros.
So in practice, these measures are making employers look to exceed that threshold of the 30% of their working time. So we must see how this is going to go onwards. On the other hand, concerning the records of the employees who are having vaccinated... Since vaccination information is considered sensitive data... Employers cannot oblige the employees to provide this information, and neither to prove that they are vaccinated. However, employers could carry out voluntary and anonymous surveys to take the percentage of employees who are fully vaccinated, and implement measures in the work place if necessary.

Concerning the obligation to get vaccinated in Spain, the vaccination is not compulsory. So employers cannot oblige the employees to vaccinate. Only in some limited sectors such as health services, nursing, where employees could imply risk for the health of other colleagues or customers, the compulsory vaccination could if necessary, be used to fight.

Stephen Woodbury:
Yeah. Thank you, Cristina. And then just in terms of the sensitive data and the vaccination et cetera, and you can't be obliged to disclose it, suggested a health pass of the type that Muriel was talking about in Paris, is a long way off coming into play in Spain by the sound of it.

Cristina Grande:
Well, I think, for example, all the people that are working in the health services, we take the rates at almost 100% of the employees and especially have been vaccinated voluntarily. So, I think the percentage of the people that is not getting vaccinated is very low. [crosstalk 00:24:05].

Karen Mitra:
Hey guys.

Stephen Woodbury:
In health services?

Cristina Grande:
No, in health services nearly everybody is vaccinated

Karen Mitra:
No one needs to see my Monopoly in the background.

Cristina Grande:
And many other people agree to vaccinate

Karen Mitra:
Ruth, I need to get that picture from you.

Stephen Woodbury:
Yes. Okay. Thanks, Cristina. Juditha, let's turn back to Germany, and we've heard a bit about working from home and vaccination and whether employers can require that. What is the position in Germany at the moment?

Juditha von der Heydt:
Yeah, well, as already said, the duty to work from home under the federal emergency brake expired at the end of June, and it's now taken by temporary measure provisionally valid until the 10th of September this year. And this regulation generally stipulates that employers are obliged to draw up a company hygiene concept to provide protective masks, possibly ventilation and COVID tests for employees twice a week. And also to allow flexible working time to avoid overload of public transport during rush hour.

In case of shared offices, the minimum area per employee must generally not fall below 10 square meters. And like in Spain, in Germany, employees cannot be forced to get vaccinated against COVID, and moreover employers may not even ask questions related to the vaccination status of employees. With regard to tests as already said, employers are obliged to offer COVID tests to staff twice a week. However, there are generally no mandatory tests for employees except for employees responsible for vulnerable groups.

And I just recently heard that some states now implemented a mandatory testing for employees who have returned from their vacation, and will have been absent for more than five days from work. But this is very new. Business travels are still considered very insecure and should therefore be replaced by virtual meetings. And yeah, as a general comment, there's no legal right to working from home in Germany. And this topic is therefore currently broadly discussed, as there are a lot of things to regulate if employees are working regularly from home, such as working hours, technical equipment, costs, access rights, termination. Employers need to implement home office agreements or respective company policies.

Stephen Woodbury:
Thanks Juditha. So, and just on the offering of COVID tests twice a week by employers. Who bears the cost of that? Does the employer has to pay the cost or is it a government-

Juditha von der Heydt:
No, that's the employer. Yep.

Stephen Woodbury:
Right. And it's voluntary, other than in the circumstances you mentioned for the employees as to whether they take that up or not?

Juditha von der Heydt:
Exactly. Yep.

Stephen Woodbury:
Okay. Interesting. Muriel, I almost don't want to ask you whether or not employers have to offer COVID testing in Paris. Do they?

Muriel Pariente:
Naturally. But they have to let employees go and make the vaccination. So I would say two measures have been implemented. One called the self test on a voluntary basis and in compliance with medical confidentiality, and provided that the employees have informed by your health professional, employers can make self tests available to employees. Also easing access to vaccination for employees, should the employees decide to be vaccinated by their company's occupational health services, the employer must allow them to be absent, even during working hours, for the purpose of vaccination.

Should employees not wish to get vaccinated by their company's occupational health services, there is no specific authorization. But employers are encouraged to ease access to vaccination for employees. The new bill submitted to parliament this week provides that absence due to vaccination will not result in a reduction in pay, even for employees who do not get vaccinated by occupational health services. And regarding remote working rules, as I said before, remote working is no longer mandatory at 100% of the working time in France, but audio or video conference meetings are still to be preferred. In the case of face-to-face meetings employees must comply with [inaudible 00:28:23] measure in particular, the wearing of masks, ventilation and room airing measures.

Stephen Woodbury:
Hmm. Thank you. Muriel. That sounds like everything is geared towards encouraging people to get vaccinated.

Muriel Pariente:
Yeah. As I said before, Stephen, this is our issue here. We need really people to be vaccinated. And I will say urgently, regarding the situation.

Stephen Woodbury:
Yes. And let's just turn to the UK then. Ruth. Issues employers need to be mindful of? I'm assuming, not just everyone now at nightclubs, which is what we read in here about.

Ruth Buchanan:
Yeah. Obviously that's where everybody is in the UK. But we've got some of the similarities to the other speakers. I guess, just to call it a couple of other ones from a UK perspective. One of the biggest issues we have here at the moment is staff self-isolating, particularly in sectors such as retail and hospitality. With the restrictions being lifted, it's been suggested that our positive cases could hit up to about a 100,000 cases a day during the summer, and until the 16th of August, which is when the rules on self-isolation will change, that means that millions more people are likely to be pinged by our track and trace app, and then have to self-isolate. And that's leading to some quite significant staff shortages where staff aren't able to work from home.

Then the other issue that a lot of our clients have been thinking about recently is the impact of long COVID. It's estimated that between 60,000 and 2,000,000 people in the UK may be impacted by long COVID. And so employers that have affected employees, are starting to consider whether that condition could be classed as a disability under our discrimination law. We also have our Trades Union Congress, you're pressing for it to automatically be classed as a disability, so that employees don't need to establish it through going through tribunal proceeding. And why it's important is because when somebody is classed as disabled, employers have a legal obligation then to make reasonable adjustments to the workplace, and a failure to do that will amount to discrimination.

Although will always have to tread quite carefully in that area because the compensation that can be awarded in discrimination cases is potentially uncapped. So it's quite a serious consideration for employers right now.

Stephen Woodbury:
Yeah. And I'd imagine you would not want to be the employer that's a test case on what is long COVID and how you prove it and how you assess any damages or liability. Ruth, can I just ask about the self-isolating? Is that mandatory or is it voluntary by the staff member if they get pinged?

Ruth Buchanan:
That's a good question. And actually the current stance... And that seems to change on an almost daily basis... Isn't mandatory, but it is highly highly recommended. Because at the moment, you don't actually have to dowload the track and trace app, so lots of people don't actually have it. So you're really relying a lot on the UK population buying into the region.

Stephen Woodbury:
But as you said, if you get a whole workplace, particularly retail, but at other other workplaces where everyone happens to contract it at the same time, even if they're vaccinated and they all decide to self-isolate, they could present an enormous challenge from a resourcing perspective.

Ruth Buchanan:
Yeah. And actually one of our main headlines this morning in the UK was supermarket shelves being empty, which is again, caused by so many staff in the UK having to go off and self-isolate right now.

Stephen Woodbury:
Right, okay. Well, everyone will be watching the UK experiment... If I could call it that... With interest. And equally, I think in the other countries where each has a slightly different variant in relation to... I shouldn't use that word... But approach to how things are unfolding from a vaccination rollout and then management of the issues perspective. And similarly in Australia, as I said earlier, we are well behind all of the other countries in relation to the rollout. So we will be watching very much with interest in terms of the management of the different issues.

Well, that brings us to the end of our discussion on the COVID vaccination rollout around the different countries covered. Thank you to our presenters on a very interesting and informative update. And thank you to our listeners. We hope you found the discussion valuable. And whilst I'd like to think we won't need to do a part three to this series, we will keep that option open. And in the meantime, I'd like to wish all of our listeners well in managing the COVID changes and challenges in their respective countries over the coming months. And thank you for listening.