Week of 6 September 2021
What are human rights considerations for employers considering mandatory vaccination programmes?
Our key takeaway: Employers are expected to take a rights-based approach to the decision of whether to mandate vaccinations for employees. This entails considerations related to necessity, reasonableness, proportionality, non-discrimination, transparency and recourse.
In the midst of a growing number of companies considering mandatory employee vaccination programmes, Pillar Two published ‘Mandatory Covid vaccines and human rights: what’s expected of your business?’:
- Conflicting rights: “Mandatory employee vaccinations can help protect human rights, including the rights to health, life, and safe and healthy working conditions, by preventing the spread of COVID- 19 between employees and to the wider community.” At the same time, “mandating vaccination for employees can also impact certain human rights, such as the right to health (if an employee suffers serious side effects), right to work (if a person is not permitted to work without having the vaccine), right to privacy (by requiring disclosure of vaccination status) and right to non-discrimination (if an employee cannot receive the vaccine for a reason that is protected by human rights principles, such as disability).”
- “Rights can only be restricted when the restriction is necessary, reasonable and proportionate to safeguarding other rights”: Many human rights are not absolute and can be limited by Governments in certain circumstances – provided the criteria of necessary, reasonable and proportionate are considered. Pillar Two suggests the following five considerations: (1) “Are we in a sector where all or some employees are at high risk of contracting or spreading the virus (e.g. air crew, medical service)?” (2) “Does our work put the community at risk, including at risk or vulnerable people (e.g. providing services to or engaging with vulnerable groups such as remote (including Indigenous) communities, older people or people with medical conditions)?” (3) “Are there other reasons our work (either what we do or how we do it) gives rise to risks for employees or the community?” (4) “Are there other feasible options that could adequately address the risks of employees contracting or spreading the virus (e.g. remote working, masks, working outdoors, additional spacing)?”, (5) “Will the programme be formally evaluated as the pandemic evolves?”
- The need for non-discrimination, transparency, and the ability to raise concerns: For these, Pillar Two suggests the following five considerations: (1) “Have safeguards been put in place so that any potential discrimination is being considered, with a particular focus on at risk or vulnerable groups?”, (2) “Would a mandatory vaccine requirement allow exemptions in special circumstances (e.g. employees who cannot be vaccinated because of a disability)?”, (3) “Has sufficient information been provided to employees about the reason for mandatory vaccinations and how this will impact them?”, (4) “Have employees been meaningfully consulted about the programme?”, (5) “Will there be an effective mechanism for employees to make a complaint if they believe their human rights have been impacted?”
Pillar Two, Mandatory Covid vaccines and human rights: what’s expected of your business?’ (24 August 2021)