Can an employer require compulsory COVID-19 vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
No, employers in Spain cannot currently require employees to submit to a COVID-19 vaccination.
So far, Spain has not implemented any legal regulation addressing any requirements associated with employees being vaccinated for COVID-19. At the moment, the Spanish government is currently analyzing and assessing how the vaccination process would be structured on a general basis (i.e., unrelated to employment), but so far, there has been no legal regulation implemented yet.
Notwithstanding the foregoing, there might be two situations in which vaccination could be mandatory for the employees if previously negotiated with the employees’ legal representatives and always coordinated by the Health & Safety prevention service of the company. These situations would be the following:
- When the adoption of other preventive measures (such as social distancing, facemasks, gloves, etc.) are not sufficiently effective to protect the employees and the productive process of the company does not allow remote working.
- When the employee’s task is predominantly transnational displacement and the countries of destination require vaccination to enter into that country. In this case, the employee’s refusal to be vaccinated may lead to termination of employment (either due to ineptitude or disciplinary dismissal).
In addition, and only in very extreme cases, where COVID-19 represents a serious and imminent danger to the life of the employee and third parties, employers may be entitled to request compulsory vaccination before the courts by virtue of the Organic Law on Special Public Health Measures, referring to reasons of urgency and necessity. However, note that this would only apply in the most extreme cases as it could be the case of geriatric centers or health centers. Nevertheless, this is not a common practice in Spain, and it will not likely be the case for most employers.
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 get vaccinated. Although employers have the obligation to protect the health and safety of their employees, this does not allow them to mandate employees to get vaccinated. Therefore, in order to balance the employer’s obligation to provide a safe work environment and the employee’s rights, employers would be obliged to adopt any other preventive measure that can ensure safety in the workplace.
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, employers cannot make any employment decision based on whether an employee refused to submit to a voluntary COVID-19 vaccination. Consequently, employers cannot terminate the employee’s employment due to a refusal to get vaccinated.
Moreover, any employment decision (including termination) based on the employee’s decision to not get vaccinated could be considered as discriminatory. In case of discriminatory dismissal, the employer would be obliged to reinstate the employee with back pay. Additionally, employees may seek damages for a breach of fundamental rights.
That said, only in those exceptional cases in which vaccination could be considered as mandatory for the employees (see answer to question 1 above) if an employee refused to get vaccinated, an employer may terminate the employment relationship.
Álvaro Fernández Sánchez del Corral, Cuatrecasas