Fri. Jan 21st, 2022

U.S. employment lawyer Scott Cruz’s phone has been ringing off the hook for the past few weeks as clients scramble to introduce mandatory “vaccine or test” policies for all workers.

He has made many different calls since Thursday, when the Supreme Court President Joe Biden’s Federal Mandate Blocked and control returned to companies and states to decide their own Covid-19 vaccination regimes.

Small and medium-sized companies “breathe a sigh of relief,” according to Cruz, who works for law firm Greensfelder in Chicago. While the mandate was a “major source of employment” for people in his profession, “it was an administrative and logistical nightmare for clients… Not many of them were happy about it”.

The change is the latest hurdle for global companies struggling with how to approach workers’ vaccinations. With a jumble of labor laws to navigate in each country they operate and facing different levels of government willingness to enact legislation, the result is a patchwork quilt of policies and a potential mountain of litigation.

Even before Biden made his claim, the position of American companies on employee vaccines was one of the most difficult in the world.

United Airlines fired nearly 200 employees last year who failed to provide proof of vaccination or exemption. The company told the Financial Times on Thursday it would not change its policy, which was ahead of Biden’s move.

In a memo to staff this week, seen by the Financial Times, CEO Scott Kirby said there are “about 8-10 United employees living today because of our vaccine requirement”. Before the policy came in, he added, one employee per week died on average from Covid-19. A judge sided with United in November when six employees tried to block the airline’s policy.

Citigroup also demanded that workers by January 14 or face the bag. In an update Thursday by his head of HR, the bank said 99 percent of its workers have been vaccinated or have been released for approved reasons.

U.S. labor laws give employers wide discretion over their vaccine policies.

“The US is the only country in the world with the concept of post-employment employment,” says Devjani Mishra, partner at law firm Littler in New York. “Most workers do not have a contract of employment or are entitled to employment for a specific period – unlike most of Europe where you have contractual protection. . so in general terms, American companies have a lot more leeway to require the vaccine as a condition of service. ”

However, different state and local rules complicate matters. New York City requires all workers on the premises to be vaccinated, while such a rule is prohibited in Florida if employers do not provide certain exemptions – with the exception of health care workers, who the Supreme Court has ruled should be vaccinated.

In the UK, the threat of discrimination claims has largely stopped companies from requiring vaccination, but lawyers said the “mood” is changing in light of new legislation that puts nursing home workers and health and social care workers at the forefront obliged to be provoked.

Stuart Proctor, Chief Operating Officer of the Stafford Collection Hotel Group
Stuart Proctor, chief operating officer at hotel group the Stafford Collection, encourages staff to be vaccinated, but can not enforce the issue © Andrew Porter

Stuart Procter, chief operating officer of the hotel group, the Stafford Collection, strongly encourages staff to be provoked but too wary of the risk of lawsuits being taken against those who refuse.

“We had a case here where a young man who was an anti-vaxxer got Covid-19 and had to isolate the entire porter and porter department himself,” he said. “It is extremely frustrating, because the team that was wiped out has all been vaccinated. But legally you can not force it. “

British companies began to remove benefits to unvaccinated workers. Retailers Next and Ikea only offer statutory sick pay, rather than the increased company rate, to unvaccinated staff who have to isolate themselves. Other companies, including law firm Debevoise & Plimpton, banned workers from the office without proof of vaccination.

“The fact that Next took this step could illustrate a changing mood for employers on the vaccination issue,” said Richard Fox, a partner at law firm Kingsley Napley. “While employers who adopt a policy of ‘no jab, no job’ or now ‘no wax, less sick pay’ may so far have been seen as extremists or outliers, we are seeing employers increasingly encouraged.”

In the US, companies, including fund manager Vanguard, have tried to lure workers with financial incentives. Vanguard offers non-vaccinated staff a $ 1,000 bonus to be vaccinated. Retailers Kroger and Bolthouse farms offered similar payouts.

In countries such as France and Italy, strict government positions already lead to employment demands of unvaccinated public health workers, say employment lawyers.

According to Anne-Laure Périès, partner at Capstan Avocats, workers at industrial tribunals and in administrative courts have argued that compulsory vaccination is an attack on physical integrity or inhuman treatment, and that being fired for refusal amounts to discrimination. Most workers’ claims were rejected, she said, but not all.

Italy is also set to oblige people over the age of 50 in the workplace to be vaccinated or suspended without pay from February.

Lawyers in the UK have not yet seen tribunal cases related to vaccination. But they expect them and say cases are likely to rest on the question of whether a worker can claim hesitation that qualifies as a religious or philosophical belief worthy of protection under the law. However, they suggested that companies are likely to be able to establish successful defenses on health and safety grounds.

Previous Covid-related cases of unfair dismissal in the UK have generally not gone in workers’ favor. Employers have won cases in recent months over an employee who was fired for refusing to wear a mask and one who was fired for attending a party during confinement.

James Davies, employment partner at Lewis Silkin, said that customers strive to introduce uniform global policies to avoid confusion, and that while “almost no one” seeks mandatory vaccination for all employees, some “ask about it”.

Pilots Kyle and Stephanie Atteberry, who are on unpaid leave from United Airlines for refusing to get a COVID-19 vaccination
Pilots Kyle and Stephanie Atteberry, who are on unpaid leave from United Airlines for refusing to get a COVID-19 vaccination © Paul Weaver / SOPA Images / LightRocket / Getty Images

Mishra said vaccination is a punishingly expensive issue for U.S. companies, which bear health insurance insurance costs for their workers. With many clients drafting policies “on a country-by-country basis,” she added, there was “gymnastics involved.”

One lawyer based in the London office of a large U.S. law firm that requires proof of vaccination from U.S. workers but not British staff said he would not take the vaccine even if it meant being banned from the office.

“I have not been vaccinated and there is nothing that will make me touch it,” he said. “In the USA, our policy is that you must be stimulated to enter the office. I think the companies that instruct it are a dangerous action. ”

Additional Reporting by Jyoti Mann and Delphine Strauss

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