In the second pandemic year 2021, access to one’s place of work was increasingly dependent on providing proof of either having been tested, vaccinated or recovered from COVID-19 in several countries. Specific professional groups – such as essential workers and workers in critical infrastructure – were prioritised in vaccination programmes. A general vaccination mandate was introduced only in one country – Austria – where, however, the legislation was suspended shortly after its launch. In several countries, vaccination was made mandatory for specific employee groups, and this policy, if contested, was by and large endorsed by court rulings. Social partners have generally encouraged employees to get vaccinated, with unions mostly opposed to both the obligation on workers to disclose their vaccination status and mandatory vaccinations.
This article is one of a series that explores working life issues in the 27 EU Member States and Norway during the COVID-19 pandemic. It is based on information provided by the Network of Eurofound Correspondents and published as a set of individual country reports in Working life in the COVID-19 pandemic 2021.
Introduction
With employees gradually returning to their workplaces in 2021 as COVID-19 abated, and in order to keep the risk of infection and contagion low, many countries introduced rules and restrictions on entering the work premises. In many cases, in order to gain access to the workplace, employees had to present proof that they represented a low epidemiological risk. This proof could be evidence of a current negative test, vaccination or recovery from COVID-19. In some instances, this practice was extended also to customers or service providers not directly employed by the business.
Obligatory testing for employees
COVID-19 testing at the workplace or before being allowed to enter the work premises was a widespread practice, applied in virtually all countries, at different phases of the pandemic.
Before vaccines became widely available in the Czech Republic, for example, testing was obligatory (for those not yet vaccinated or those just recently recovered from COVID-19). In March 2021, the testing of employees at companies with at least ten employees became mandatory. Employees could only be admitted to the workplace on the condition that within the last seven days they had tested negative for COVID-19. The tests were provided and paid for by the employer.
In some countries, testing in specific sectors was obligatory in the beginning. In Austria, tests for personnel working in hospitals (once a week) and nursing homes (twice a week) became obligatory in late 2020. In Luxembourg, the government introduced regular mandatory testing requirements for non-vaccinated personnel in the health and social care sector in June 2021. In Greece, from April 2021, COVID-19 self-testing was imposed on several categories of public and private sector employees in sectors such as retail, food, financial and insurance services, transport, cleaning services, driving schools, hairdressing and beauty, gambling and betting services, as well as public sector employees in citizens’ service centres, local administration, courts of law and in the ‘Help at Home’ programme. All these categories of employees were required to undergo COVID-19 self-testing once a week as a prerequisite to working physically at the workplace. Such self-tests were distributed free of charge through pharmacies, and failure to comply resulted in fines. In Lithuania, tests for unvaccinated employees became mandatory in December 2021 in the following sectors: personal healthcare, social services, education, pharmaceuticals, international freight transport, public and passenger transport, leisure/entertainment, cultural services, public catering activities, retail, public administration, defence, manufacturing and activities related to the management of a mass influx of immigrants.
Following the widespread distribution of COVID-19 vaccines among the general population of the European Union by around mid-2021, some countries started to delegate the costs for testing to unvaccinated employees themselves in an effort to encourage them to get vaccinated. This was the case in Greece, where unvaccinated employees had to bear the costs of getting tested while employees and employers alike were liable to fines for non-compliance. In Lithuania, from December 2021, in order to encourage people to get vaccinated, periodic preventive testing was no longer reimbursed by the state. Slovenia took a different approach at first, with employers obliged to cover the costs of tests for their employees. When employer organisations contested this obligation and demanded individual responsibility for self-testing (or mandatory vaccination), the government intervened in November 2021 and agreed to cover the charges for rapid tests.
COVID-19 green certificates: Proof of test, vaccination, or recovery
Several countries introduced regulations whereby only those employees who could show proof of a negative test result, vaccination or recovery would be allowed entry to the workplace. Such regulations came into force in September in Italy and Slovenia, in October in Austria, in November in Germany and Slovakia and in January 2022 in Luxembourg (where it had been a voluntary option for employers since November). In Latvia, a so-called ‘green regime’ was implemented for private sector workers in December, with proof of either vaccination or recovery. In Cyprus, a ‘safe pass’ was first introduced in February 2021 (allowing only employees with a negative test result to go to the workplace) and revised in July 2021, to include proof of vaccination or recovery. Presentation of this certificate was obligatory for both employees and self-employed and extended to almost all areas of public life (as in many other countries), even applying to customers at retail stores, supermarkets and shopping malls.
In some countries, a ‘green passport’ was implemented to a limited degree. In Denmark, from 25 November 2021, employers could insist that employees – across all sectors, both private and public – present COVID-19 certificates and proof of testing. Employers could also require employees to be tested and to declare the result of the test. However, they were only allowed to impose a test if it was objectively justified to limit the spread of infection with COVID-19, or for significant operational considerations at the company. At the same time, the presentation of COVID-19 certificates became mandatory in the public sector for all employees working for the government and the regions. Those requirements were valid as long as COVID-19 was classified as a socially critical disease. In Croatia, COVID-19 certificates (proof of a negative test, vaccination or recovery) were made mandatory for users and employees of public and state services from 15 November 2021 onwards. A similar regulation was implemented in Latvia, where in the public sector only those who were able to show one of the three possible proofs could go to work.
Priority and mandatory vaccination
Priority vaccination plans were implemented in all countries; as well as prioritising according to age and health conditions, employees in specific sectors were also among the first to be vaccinated. Most countries prioritised employees in health and social care, law enforcement and public administration, as well as essential/critical workers, teachers and retail workers.
Austria is the only country where a mandatory COVID-19 vaccination has – in theory – been imposed on the general population. In order to boost the comparatively low vaccination rate in the country, the general vaccination mandate for persons aged 18 years and older was endorsed by parliament in autumn 2021 and came into force in February 2022. According to the law, fines ranging from €600 to €3,600 could be levied on people who are not vaccinated. However, before any actual checks had taken place or fines been issued, the federal government suspended the legislation temporarily in March 2022, on the basis that it was not appropriate to put such a severe measure in place given that an acute overload of the national health system with COVID-19 patients was not expected. After three months, it was agreed the situation should be re-evaluated – and the legislation possibly reintroduced – if an infection wave was expected in autumn 2022.
In other countries, vaccination was made mandatory for specific professional groups only, as outlined in this section.
In Italy, vaccination was made mandatory for workers in the healthcare sector in April 2021. In September, it was extended to workers in semi-residential care institutions and in November to staff in the defence, public order, public emergency and prison sectors, as well as in education and training. In January 2022, mandatory vaccination was again extended to include people employed in tertiary education and for everyone over the age of 50. Failure to comply with the mandatory vaccine order meant being suspended from employment without pay.
In Greece, compulsory vaccination against COVID-19 was introduced in legislation in July 2021. It applied to all employees in private, public, and municipal health care facilities and in services involved with the care of older people and people with disabilities. Public sector employees that did not comply with the rule were suspended from their duties without pay and social security benefits, while private sector employers were obliged to suspend unvaccinated employees and did not have to pay their salaries for that period. In December 2021, compulsory vaccination against COVID-19 was also legislated for all persons born before 31 December 1961. In case of non-compliance, an administrative fine of €100 per month was imposed from 1 February 2022.
In Hungary, vaccination was made compulsory for health and social care workers on 1 August 2021. On 28 October, the government issued a decree on compulsory vaccination against COVID-19 for employees in state and municipal institutions in order to ensure the smooth functioning of the state. According to the decree, vaccination is required for all public sector employees in public administration, national defence, law enforcement, social care, public education, vocational training, higher education, and cultural institutions. At municipal level, it lies within the mayor’s autonomy to decide which employees are to be vaccinated. Furthermore, from 1 November 2021 onwards, the Hungarian government allowed employers to make the COVID-19 vaccination compulsory for employees. Employers must assess whether, in the interests of health protection and taking into account the specific characteristics of the workplace, being vaccinated should be a condition of employment.
In France, mandatory vaccination for several occupational groups came into force on 15 September 2021, including healthcare and long-term care staff, firefighters, military personnel, and civil security and civil protection workers. Failure to get vaccinated resulted in the work contract being suspended. In Belgium, employees in the social care sector had to get vaccinated within a period of three months, starting 1 January 2022. At the end of this period, employees who still refused to get vaccinated faced a possible suspension of six months or even dismissal. In the Czech Republic, a decree of 7 December 2021 made vaccination mandatory for particular groups, such as people over the age of 60, and in specific professions such as health and social workers. The ruling will be reviewed by the Constitutional Court of the Czech Republic in 2022.
In Germany, an occupation-related vaccination mandate was issued in December 2021, stipulating that by 15 March 2022 employees working in hospitals, nursing homes, doctors’ surgeries or emergency services had to be fully vaccinated, recovered from COVID-19 or have a certificate exempting them from vaccination for medical reasons. In Latvia, the government adopted a regulation in October 2021 requiring mandatory vaccination for all workers in educational institutions, students in colleges and higher education institutions, healthcare workers (including workers in pharmacies) and social care workers. Education workers failing to fulfil this requirement would be barred from remote working. From 15 December onwards, all private sector workers working at their employer’s premises had to be vaccinated or provide a certificate of recovery. In Poland, compulsory vaccination applies to persons practising a medical profession, persons providing pharmaceutical services and activities in pharmacies and students preparing for the medical profession.
Court rulings in favour of compulsory testing or vaccination
Few court rulings have been reported across the European Union regarding testing, vaccination and access to the workplace.
Cases were brought before the national court mainly by employees who challenged the requirement to be vaccinated. In most cases, the courts ruled in favour of the employers, for example in France, Hungary and Latvia. In Estonia, unvaccinated employees in hospitals and the defence forces have been dismissed from their employment, on the grounds that the risk of spreading infection presented by such employees is unacceptable. Several decisions by the court have taken a supportive position towards employers, arguing that the move to remove unvaccinated employees from such services was proportional and acceptable as defence and public health interests would – at the time – have more weight than personal interests and employees did have a way of avoiding being dismissed. In Greece, courts argued similarly that compulsory vaccination against COVID-19 would be constitutional in critical circumstances, generating social solidarity and at the same time protecting employees who happened to be at greater risk of infection and the spread of infection. Therefore, all appeals that had been submitted by August 2021 to annul a mandatory vaccination provision on the grounds that it violated the constitutional rights of human dignity, the free development of the individual’s personality, and the right to work were rejected. The only country to report a contrary decision was Spain, where the authorities stated that vaccinations could not be imposed as a condition for going to work in person, as it would discriminate against workers who choose not to be vaccinated. Hence, if an employee refuses to be vaccinated, the company must guarantee that they can still carry out the work with the necessary measures put in place in the office.
In Austria, if employees who are mandated to be tested – or to wear masks – refuse to do so, their employment relationship can be terminated, in line with the legislation. There are several cases of teachers or health personnel who have been let go for this reason. In a case that was brought before the courts, a registered nurse working as area manager in a nursing home refused to be tested regularly (irrespective of symptoms) due to their apparent doubt about the usefulness of the test. Thus, the employer terminated the employment relationship, which was deemed justifiable by the Supreme Court. A similar case occurred in the Netherlands, where a dance company suspended an unvaccinated employee who refused to test himself. A sub-district court considered the infringement of the dancer’s rights to be justified, as the aim of the dance company to create a safer working environment outweighed the dancer’s objection to testing and sharing the results.
Social partner involvement and views
By and large, the vaccination of employees was encouraged by both trade unions and employer organisations (for example, in Finland). However, both sides have expressed opposing viewpoints about the obligation to declare one’s vaccination status (for example, in Germany, where the German Trade Union Confederation DGB views the mandatory provision of vaccination status to the employer as an infringement of employees’ data protection rights) and the requirement to test and vaccinate.
In order to keep infections at the company premises at bay, and to protect vulnerable groups, mandatory testing and vaccination has often been encouraged by employer organisations (for example, in the social care sector in Belgium and Spain). In Belgium, employers argued for stronger instruments to enforce vaccination amongst care staff, in order to reduce the numbers of personnel becoming sick and unfit to work. In Spain, many employer organisations campaigned for mandatory vaccination. Trade unions, on the other hand, are often opposed to any mandatory measures imposed on employees (for example, in Belgium and Spain) and challenge any discrimination based on vaccination status, arguing that the decision to vaccinate should remain a personal and voluntary one.
Conclusions
With the availability of vaccines in 2021, a new era in fighting COVID-19 commenced. Mandatory vaccinations for workers in specific sectors, or in contact with highly vulnerable people, have been discussed in many countries and implemented in several sectors – first and foremost in the health and social care sectors. In the second half of 2021, a few countries introduced entry requirements for workers to be physically allowed at the work premises. Aimed at lessening the risk of the virus spreading, the employees were required to present proof of either a negative test result, vaccination or recovery from the virus. In cases where these regulations were challenged, they were by and large endorsed in court decisions.
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