The Employer’s Obligations and Rights in Light of Mandatory Vaccination
Due to an increase in the incidence of COVID-19, the Head State Sanitary Inspectors of Moscow and the Moscow Region have decided that people working in certain sectors will need to undergo mandatory vaccination. More than a dozen Russian regions have resorted to similar measures. In St. Petersburg mandatory vaccination so far applies only to civil servants, as well as to employees of state institutions and unitary enterprises.
Since mandatory vaccination may become a general trend in all regions of the country in the coming months, we will highlight a number of topical issues that employers might face.
Employees subject to mandatory vaccination
Only those organisations listed in regional acts are required to vaccinate employees.
In Moscow these are trade organisations (wholesale, retail, remote); beauty salons, cosmetic salons, spas, massage salons, solariums, baths, saunas; fitness clubs, swimming pools; laundries, dry cleaners; catering organisations; client offices of financial organisations (banks, microfinance organisations); transport organisations, cabs; organisations in education, healthcare, social protection and social services; housing and energy services; museums, exhibition halls, libraries, lecture halls; theatres, cinemas, concert halls; organisers of leisure, entertainment, entertainment events; children’s playrooms, children’s entertainment centres, day-care camps, other places of similar events for minors, shopping and entertainment centres; theatres, cinemas, concert halls; organisers of large-scale athletic and sports events; delivery services for goods and food, including courier services, etc.
This list may differ in the regions and feature new types of activities. For example, hotel services are mentioned separately in the Tver, Kaliningrad, and Sakhalin regions, and in Buryatia.
Moscow employers must vaccinate at least 60% of their employees. In this case, employees are individuals working either under employment or civil-law contracts (in particular, self-employed), regardless of their citizenship, whether they work remotely or on a part-time basis. If an organisation has regional subdivisions, the 60% is calculated only from the number of persons working in a particular region.
The mandatory vaccination requirement does not apply to individuals who, according to Ministry of Health guidelines, have contraindications to vaccination (pregnant women, individuals under the age of 18, people with acute diseases, etc.). However, these individuals are not excluded from the number of employees covered by the 60%.
Vaccination dates vary by region. For example, in Moscow the first dose of a two-dose vaccine or single-dose vaccine must be given by 15 July 2021, and the second dose of a two-dose vaccine by 15 August 2021. In the Leningrad Region, similar measures must be implemented by 1 September 2021.
For employers operating in Moscow, the Moscow Region and the Altai Republic, it is mandatory to submit reports on vaccinated employees according to the form specified in the regional acts. In Moscow, such data is provided electronically through the employer’s personal account on the official website of the Mayor and Government of Moscow from 1 to 15 July 2021.
Employer’s actions to ensure vaccination
In order to comply with the mandatory vaccination requirements, employers should:
- issue a vaccination order;
- raise employee awareness;
- notify each employee in writing of the need:
- to get vaccinated and provide a certificate of vaccination; or
- to provide a medical exemption certificate; or
- to provide a written refusal to vaccinate stating the reasons.
Please note that according to the explanations of the Federal Labour Office, employers are not required to request separate consents from employees to process employees’ personal data (information about vaccination against COVID-19, the presence of IgG antibodies, SNILS, MHI policy number, passport data, cell phone number).
To encourage employees to get vaccinated, employers may create in-house policies instituting a system of bonuses for vaccinated employees, provide paid leave(s), etc.
What to do with an employee who refuses to be vaccinated
Employees have the right to refuse to be vaccinated against COVID-19 on the basis of Art. 5 of the Federal Law “On Immunoprophylaxis of Infectious Diseases” dated 17/09/1998, No. 157-FZ (“Immunoprophylaxis Law”).
According to the positions voiced by Rostrud, the Moscow City Supervisor and the head of the Moscow Department of Rospotrebnadzor, an employer must suspend from work an employee without medical contraindications who has refused to get preventive vaccination against COVID-19. In this case, wages do not accrue during the suspension, and the absence from work is not included in the length of service.
At the same time, it should be noted that in accordance with current COVID-19 legislation, suspension from work is possible in only two cases:
- the Head State Sanitary Doctor (or his deputy) shall issue an order for the temporary suspension from work of persons who may be sources of the spread of infectious diseases due to the type of work they perform;
- the work performed is on the list of work associated with a high risk of infectious diseases (“List”) (this includes primarily work in educational organisations and some types of medical activity).
To this day, none of the regional acts specifically state that unvaccinated employees need to be suspended from work, and most organisations’ areas of activity are not on the List.
Given the legal uncertainty on this issue, as well as the lack of established uniform practice, it seems there is a risk that an employee could challenge a suspension in court and demand compensation from the employer.
We also draw special attention to the fact that an employee’s refusal to be vaccinated is not grounds for dismissal or unilateral withdrawal from a civil-law contract.
Employer’s liability for failure to comply with mandatory vaccination requirements
If an employer fails to comply with the mandatory vaccination requirements, it may face an administrative fine of up to 150,000 roubles on officials and up to 500,000 roubles on the organisation itself. In addition to that, the most probable penalty is administrative suspension of the organisation’s activities for up to 90 days (part 2, article 6.3 of the Code of Administrative Offences of the Russian Federation (“CAO RF”).
If an employer fails to report vaccinated employees, where required by regional acts, an officer may be fined up to 50,000 roubles, and a company may be fined up to 300,000 roubles (part 1, article 20.6.1 of the CAO RF)