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COVID-19 vaccine and work relations

Viimati uuendatud: 30.12.2020


Please see the newest information about the COVID-19 vaccine at Vaktsineeri.ee.

Attention! In connection with the information provided below, it should be kept in mind that Estonia will not immediately receive enough vaccine to immunise all people. Hence, the state has drawn up a vaccination plan and defined the risk groups which will be vaccinated first.

  1. Is it necessary to conduct a working environment risk analysis for biological risk factors and/or update the risk analysis in connection with coronavirus to have an employee included in the so-called vaccination list? 

The so-called vaccination list is actually a vaccination plan, defining the risk groups to be vaccinated first. 

Providing vaccination is one of the measures which the employer can use to ensure the safety of the working environment and to protect the health of the employee. The measures required for the alleviation of risks in the working environment can only be determined by first mapping what the risks are and how likely the risks are to materialise. Thus, the employer must review their working environment risk analysis to prevent the spread of coronavirus, update the risk analysis, if necessary, and draw up an appropriate action plan based on the risk analysis matching the actual situation. 

When the vaccine arrives in Estonia, the employer can foresee vaccination of the employees as one of the potential measures for reducing the spread of coronavirus and the vaccination could be part of the working environment risk analysis action plan for 2021, for example. 

The vaccine is certainly not the only way to prevent infection with biological risk factors, and the employees has the right to refuse vaccination. Thus, the employer must also consider other measures for risk alleviation, such as:

  • issuing additional personal protective equipment;
  • reorganising the work. 

Read more about assessment of biological risk factors in the page "Coronavirus as a biological hazard"

  1. Does the employee have the right to refuse vaccination? 

The employer cannot force the employee to vaccinate, i.e. the employee has the right to refuse vaccination. If the risk analysis reveals that vaccination is especially important in certain sectors or in certain areas of activity (e.g. healthcare, care homes) and no other measures are sufficiently efficient for protecting the health of the customers/patients, vaccination may be justified. 

The employer may specify in the working environment risk analysis action plan that they will provide vaccination for all employees, but this does not mean that the employee must get vaccinated. Employees cannot be forced to get vaccinated against their will, this would be in conflict with the principle of the physical integrity of a person and would constitute a clear breach of human rights. 

The employee must be aware of everything concerning the health risks in the working environment, as well as of the precautions for preventing the effects of biological risk factors, the hygiene requirements, the use of personal protective equipment, prevention of hazardous situations, and action in the case of a risk of an accident. This means that after conducting or updating the risk analysis and implementation of new measures, the employees must be notified thereof. If the employees do not know why certain measures have been implemented or why the employer has established new rules, misunderstandings will arise. Thus, it is important for the employer to explain why vaccination is important and how the employer will proceed if the employee refuses vaccination. 

Pursuant to clause 6 (2) 7) of Regulation No. 144 of the Government of the Republic of 5 May 2000 on the occupational health and safety requirements for working environments affected by biological agents (hereinafter the regulation), if a hazard cannot be removed by implementing the measures which are listed in section 5 of the same regulation, the health risk of the employees must be reduced to the lowest possible level, and vaccination must be made available for employees who come in contact with biological risk factors for which efficient vaccines are available.

It is important for the employee to be aware of the consequences of their refusal of vaccination for the employer, i.e. if the employer will be required to reorganise their work, provide additional personal and general protective equipment or if there is a risk of their employment contact being terminated under extraordinary circumstances in justified cases if it is not reasonably possible for the employer to reorganise the work or implement other measures for the efficient alleviation of risks and if there is a high risk of the spread of the virus, which would put to risk the patients or customers of the employer. 

  1. Who will pay for the vaccine?

There is currently a vaccination plan drawn up for the vaccine against coronavirus and not all employers can acquire the vaccine. The regulation of biological hazards in the working environment establishes the general requirement for the employer to pay for vaccination. The first vaccinations will, however, be conducted based on the vaccination plan, thus, the vaccine is currently not available for the employer in the market and it is not known when the vaccine will become available. 

Pursuant to subsection 6 (3) of the regulation, the employer must consult with an occupational health doctor to determine whether or not vaccination is necessary and appropriate, and vaccination must be organised for employees at the expense of the employer. 

Page 5 of the Covid-19 vaccination plan: Vaccination against COVID-19 will be free for all in Estonia in 2021. Vaccination will be provided on a voluntary basis, but each vaccination will contribute to reducing the spread of the virus and restoring a normal situation and will help to protect individuals who cannot be vaccinated for various reasons. 

  1. Must the employer reorganise work if the vaccination of an employee is contraindicated due to a potential allergic reaction (extraordinary circumstances)? 

The employer must foresee various different preventive measures for alleviating risks in the action plan drawn up based on the results of the working environment risk analysis. If the risks cannot be alleviated in any other manner and the employee cannot be vaccinated, the employer must consider the possibilities for reorganising the work to provide an opportunity for the employee to continue the employment relationship. Thereat, the communication and trust between the employer and the employee are very important and there is not a significant difference between the situations in which the employee cannot be vaccinated or does not wish to get vaccinated, as the outcome is the same: the employee refuses vaccination. 

Being requested to get vaccinated may come unexpectedly for long-time employees; therefore, it is very important for the employer to explain the purpose of the measure and to leave the employees time to think and allow them to suggest other solutions before issuing a warning to the employee or terminating the employment contract under extraordinary circumstances. 

Thus, the employer must think whether it is possible to assign to the employee duties in the case of which the hazard for the employee as well as other people would be lower. If this is not possible, it may be the case of non-suitability for the position or inadaptability for the purposes of clause 88 (1) 2) of the Employment Contracts Act, as a result of which it is not possible to continue the employment relationship, i.e. the employer will be entitled to cancel the employment contract under extraordinarily. 

Before cancellation of an employment contract, it should be kept in mind that pursuant to subsection 88 (2) of the Employment Contracts Act, before cancellation of an employment contract, in particular on the basis specified in subsection (1) 2) of this section, the employer shall offer other work to the employee, where possible. The employer shall offer other work to the employee, including organise, if necessary, the employee’s in-service training, adapt the workplace or change the employee’s working conditions if the changes do not cause disproportionately high costs for the employer and the offering of other work may, considering the circumstances, be reasonably expected.

Pursuant to subsection 3 of the same section, the employer must also first give a warning to the employee, thereby allowing the employee to reconsider vaccination until a specified deadline and only then when it is conclusively clear that the employee does not wish to get vaccinated, a declaration of cancellation will be handed to the employee on the basis of clause 88 (1) 2) of the Employment Contracts Act. Thereat, the employer must consider all circumstances, including assess the risk of infection in the event of changing of the situation (for example stopping of the spread of coronavirus). 

Termination of the employment relationship based on clause 88 (1) 2) of the Employment Contracts Act will enable an employee with a sufficient unemployment insurance period to apply for unemployment insurance benefits after becoming unemployed and registering with the Estonian Unemployment Insurance Fund.

  1. Does the employee have the right to refuse vaccination and what are the consequences of this refusal (if there are no medical contraindications)? 

Vaccination is not the only measure for alleviating the risk of a biological hazard; thus, the employer must consider different options for alleviating the risks connected to biological hazards.

The employer cannot place the employee under the obligation to get vaccinated, but can only provide an opportunity for vaccination. If the employee refuses vaccination and other possibilities for alleviating the hazards are not sufficient in the employer’s opinion, the employer must explain the consequences to the employee, give a warning to them (preferably at least in a format which can be reproduced in writing), and, if there are no other solutions, cancel the contract extraordinarily on the basis of clause 88 (1) 2) of the Employment Contracts Act. 

It is also necessary to explain to the employee that if there are alternative options to vaccination for ensuring the safety of the working environment, but the employee refuses all of those options, this may constitute a violation of the employee’s legal obligations or a violation of the employer’s lawful organisation of work, as a result of which the employer may give a warning to the employee in order to call the employee to order and, in the event of repeated violations, cancel the employment contact on the basis of clause 88 (1) 3) or on the following grounds due to the employee’s violation. 

  1. Can the head of a care home or other such institution be held accountable if they allow an employee to refuse vaccination and continue working with customers included in a risk group after vaccination has become available? 

It is a manager’s obligation to organise work in a manner which is safe for the employees as well as for the customers, which means that they must do everything in their power to ensure safety, i.e. conduct a working environment risk analysis and, based on the risk analysis, implement the best measures possible to prevent the spread of the virus. 

  1. Can the employee also be held liable if they refuse vaccination, as well as periodic testing, but continue to visit customers who are included in a risk group on a daily basis? 

‘Periodic testing’ probably refers to a situation in which the employer has made testing at a certain interval compulsory and has paid for the testing. However, the entire process begins with the results of the working environment risk analysis and the measures implemented by the employer, i.e. whether or not the employer has foreseen any alternative measures in addition to vaccination for preventing the spread of coronavirus and which measures have been foreseen. If an employee refuses vaccination but the employer has also foreseen other efficient measures for alleviating the hazards, such as using respirator masks, hazmat suits, etc., i.e. the employer has done everything in their power to protect the health of the employee and other individuals, the employer may not be held accountable. If the employee fails to observe the measures implemented by the employer which results in the employee being infected, the employee will be held accountable.

Pursuant to subsection 15 (2) of the Employment Contracts Act, the employee must refrain from actions which hinder other employees from fulfilling their obligations or endanger the life, health or property of the employee or other persons. Furthermore, pursuant to § 14 of the Occupational Health and Safety Act, the employee must participate in the creation of a safe working environment by observing the requirements of occupational health and safety. 

Together, all those obligations mean that the employee may not put the employer’s customers at risk by their carelessness and, in such situations, it is the employer’s right and obligation to inspect the employee, to call them to order, and to respond to the employee’s violations first by giving a warning, which may result in extraordinary cancellation of the employment contract based on clause 88 (1) 3) of the Employment Contracts Act or due to the employee’s violations. 

  1. Can the employer give a warning to an employee if an action plan which is based on the working environment risk analysis establishes vaccination as one of the measures, the employee is included in the vaccination list, but refuses vaccination without a valid reason? 

The so-called vaccination list is actually a vaccination plan, defining the risk groups to be vaccinated first. 

If vaccination is one of the potential measures for alleviating the hazards in the working environment and an employee refuses vaccination, the employer must implement other risk alleviation measures, if possible, or reorganise the work, if necessary. If the parties reach an agreement for reorganising the work, the terms and conditions of the employment contract may only be amended by an agreement between the parties based on section 12 of the Employment Contracts Act (for example, changing the employee’s duties). 

If the employer cannot reasonably reorganise the work or implement other measures for the efficient alleviation of the hazards, the employer may be entitled to give a warning to the employer in justified cases and explain the potential consequences. In the event of giving a warning, it is important that the employee understands the employer’s current or further actions in connection with the employment relationship. If the employee still refuses vaccination, the employer may, in justified cases, cancel the employment contract due to the employee’s unsuitability on the basis of clause 88 (1) 2) or due to the employee’s failure to perform their duties on the basis of clause 88 (1) 3) of the Employment Contracts Act. 

  1. Can the employer cancel an employment contract extraordinarily due to failure to perform the employee’s duties in connection with the responsibility of the care home for the health of customers after giving to an employee two or three warnings of their employment contract being cancelled if they refuse vaccination? 

The entire process begins with the results of the working environment risk analysis and the measures implemented by the employer, i.e. whether or not the employer has foreseen any alternative measures in addition to vaccination for preventing the spread of coronavirus and which measures have been foreseen. This means that the employer should assess whether or not it is possible to implement other measures. Cancellation of an employment contract should be the very last measure if there is no other option. 

If an employee has been warned repeatedly but their attitude towards proper fulfilling of the requirements remains unchanged, the consequences are extraordinary cancellation of the employment contract due to the employee’s unsuitability on the basis of clause 88 (1) 2) or due to the employee’s failure to perform their duties on the basis of clause 88 (1) 3) of the Employment Contracts Act. 

  1. What happens if half of the employees of a care home refuse vaccination, for example, which means that it will not be possible to reorganise the work so that those employees who refuse vaccination and testing will not be coming in contact with the customers?

First, it should be considered whether vaccination and/or periodic testing are the only measures or if there are any other solutions for protection of the health of the customers, as well as other employees. 

From the perspective of the employees, regular and open exchange of information and explanation of why certain measures are being implemented and what are the long-term goals and the potential consequences of each different option are important. Involvement of the employees will help to find the best solutions.

 

Külastusi 153, sellel kuul 153

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