Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
There are two lists of preventive vaccination in Russia:
- The National Calendar of Preventive Vaccination; and
- The Calendar of Preventive Vaccination for Epidemiological Indications.
Vaccination included in the National Calendar is de-facto mandatory for some categories of employees without meeting any additional conditions. In other words, inclusion in the National Calendar itself is sufficient to make it de-facto obligatory for certain categories of employees. These categories are specified in the Decree of the Government of the Russian Federation N 825 of 15.07.1999 "On Approval of the List of Works, the Performance of Which is Associated with a High Risk of Infectious Diseases and Requires Mandatory Preventive Vaccinations" (the ‘Decree”). Based on this Decree, an employer may require compulsory vaccination only when an employee performs work related to high risk of contracting infection (e.g., employees working in educational institutions, in organizations dealing with infections, those working with live cultures of pathogens of infectious diseases, etc.). A compulsory vaccination can therefore be required by an employer only in the limited number of cases as listed by this Decree.
In turn, vaccination included in the Calendar of Vaccination on Epidemiological Indications may become de-facto obligatory only if a chief sanitary inspector of the Russian Federation or respective region adopts a decision on vaccination.
By Order of the Ministry of Health, COVID-19 vaccination has been recently included in the Calendar of Preventive Vaccination for Epidemiological Indications for several categories of citizens. This Order specifies a list of categories of citizens who are to be vaccinated against coronavirus infection "in order of priority". The first level of priority includes, among others, employees of medical and educational organizations and social workers. As mentioned above, vaccination included in the Calendar of Preventive Vaccination for Epidemiological Indications may become de-facto obligatory only if the chief sanitary inspector of the Russian Federation or a chief sanitary inspector of a respective region adopts a decision on vaccination. However, to date, no such decision has been taken yet.
Thus, COVID-19 vaccination currently remains voluntary (including for the listed categories of employees).
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
Yes, employees can refuse to be vaccinated. If they belong to the categories of employees listed in the Decree mentioned above, they may be suspended from work by their employer or excluded from performing tasks connected with high risks of infectious diseases. Otherwise, for any other categories of employees, the employer may only offer them to be vaccinated but they may not be suspended from work if they refuse such vaccination.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
No, according to the applicable legislation, an employee may not be dismissed for refusal to comply with his employer's vaccination policy. However, if the employee belongs to one of the categories of employees indicated in the Decree referred to under question 1 above, he may be suspended from work without pay. In any case, the employee's refusal may not constitute a just cause for termination.
What benefits or accommodations do employers have to make for vaccinated employees?
An employer may only encourage employees to be vaccinated by providing information on the benefits of such vaccination, vaccines currently available, centers of vaccination, etc. But no other measures should be put in place (such as financial incentives) by the employer to motivate its employees to be vaccinated at the risk of being accused of implementing health-related discriminatory measures.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
If vaccination is not compulsory for an employee, then his non-vaccination cannot be the reason for vaccinated employees to refuse to work in the same vicinity. If vaccination is compulsory, it is not up to the vaccinated employees to decide whether they wish to work near a non-vaccinated employee. However, they can approach their employer to ask him to act towards the non-vaccinated employee by suspending the latter from work or by excluding him from performing tasks connected with high risks of infectious diseases, since the employer must provide its employees with a safe working environment.
It must be noted that information on vaccination is considered information on the health of an employee. Therefore, an employer, without an employee’s written consent, cannot distribute information among employees as to who is vaccinated and who is not. Even if an employee provides the employer with consent to process information on vaccination it is advisable to limit this processing to the absolutely required minimum.
In your country, are employers required to provide paid leave for employees to get vaccinated?
Employers are not required to provide paid leave for employees to get vaccinated. However, nothing prevents an employee from applying for paid leave with his employer and using this time off to be vaccinated.
Christophe Huet, CMS Russia
Ekaterina Elekchyan, CMS Russia