The COVID-19 pandemic flipped the script on how business and production function in extreme circumstances. Pharmaceutical companies have finally released vaccines to aid with the normalization of the commercial and social intercourse after nearly a year of development. Science points securely to vaccination as the only effective way to deal with the pandemic but the relative novelty of the vaccines poses a number of questions related to their mandatoriness and the possibility that employers and merchants require their employees and clients prove such immunization. Business and citizens all over the world are all interested in the discussion on these topics, while Germany and the UK have taken it up a notch to expert and parliamentary level. States such as Israel aim to provide vaccines for every citizen, while Denmark is already preparing to introduce immunization ‘passports’ which vaccinated people can show where vaccination is mandatory. .
On the other hand, the policy of lockdowns leads to severe constraints on the basic constitutional rights of citizens – including the right to free association, right to work, right to education and right to healthy environment. Restricting these rights should only temporarily and only as far as necessary is a fundamental principle of constitutional law (also enshrined in Art. 57 of the Bulgarian Constitution) – and courts in several countries, including South Africa and the Czech Republic, have already overturned some lockdown measures as unconstitutional.
Should vaccines prove reliable fighting both illness and spread of COVID-19 by those who took the vaccine, authorities will struggle more and more to justify the need to apply anti-COVID-19 measures against such people. If that happens, business and citizens can hope that some restrictions will be lifted vis-à-vis vaccinated people, which would allow for different treatment towards employees and clients regarding entry into commercial spaces and the provision of services.
As of February 2021, the official stance of the Bulgarian government is that COVID-19 vaccination will not be made mandatory, but employers are entitled to require vaccines of their workers. Obviously, employers are not able to rely on any legislative grounds for implementing mandatory vaccination among their personnel. As vaccination interferes with an intimately personal aspect of employees’ and clients’ lives, the unilateral enforcement of such requirements will be virtually impossible without regard for a few core principles.
The options for employers:
Even though limited by the existing regulatory framework in the areas of anti-discrimination law and labour law, employers still have the possibility of implementing at least partial immunization for their workers through a number of methods.
Firstly, employers cannot unilaterally force their current employees to take the COVID-19 vaccine and firing employees on those grounds would be illegal. Mandatory vaccination for current employees can be introduced through renegotiation of the conditions of the employment relationship through amendment of the contract of employment. In this scenario the employer cannot force the employee to conclude such an annex.
In addition, the employer could setup the workplace in such a way that vaccinated and non-vaccinated workers are allocated to separate (both physically and organization-wise) departments where the work conditions do not differ beyond those based on the vaccination itself (e.g., disinfection frequency, lack of protective barriers etc.).
In their commercial dealings companies are entitled to establish whatever conditions they choose regarding the vaccinations of their counterparties’ employees, to negotiate services to be provided by vaccinated personnel and to seek compensation should the other party fail to provide the negotiated amount of vaccinated workers to carry out the service in question. Such contractual clauses are the natural evolution of the future market niches created by the option for vaccination in particular in sectors which are in constant contact with the clients – tourism, hospitality, transport services etc. – and which have built or are yet to build new links for the provision of entirely COVID-free services.
In this vein, employers enjoy much more freedom to request vaccination from new employees. It should be noted that such a requirement should be laid out in the job description, as opposed to exclusively addressing the applicant’s personality (similarly to how the oft-required driver’s license is handled). In this scenario vaccination is subject to the freedom of contract between employer and employee and will substantially help employers when hiring future workers.
The options for merchants:
Bulgarian legislation does not currently permit merchants to refuse services to clients merely due to lack of vaccination. Business owners cannot force their clients to be vaccinated without the relevant legislative basis. Even though no settled practice exists, vaccination should fall within the category of ‘personal situation’ within the meaning of Art. 4, para. 1 of the Bulgarian Law for Protection against Discrimination. Pursuant to this article, treating clients differently based on such traits would be illegal.
Merchants still have the option to implement separate regimes for servicing vaccinated and non-vaccinated persons respectively – by providing separate counters, lounges and rooms to that end. Once these measures have been implemented, merchants must take care to protect themselves against potential anti-discrimination laws exposure. Variances in prices for services provided to such people are still up for debate, while increasing prices purely due to vaccination or lack thereof could be construed as discriminatory.
Be it merchant or employer, Obretenovi Law Firm’s team is available to assist you with an array of options for introducing the COVID-19 vaccine among your staff, clients and counterparties within the confines of the boundaries established by the applicable legislation.