Post second wave of COVID-19, there is a significant improvement in situation in India leading to rise in expectations of large businesses to gradually return to normalcy which means opening of workplaces. While there are mixed statements in the media regarding a third wave, and large population in India is still unvaccinated (including those who are not keen to get vaccinated), several forums are discussing the need of vaccination of workforce that may possibly return to workplaces. As per the publicly available information, even though Government of India has been able to administer COVID-19 vaccine to about 500 million people until August 06,2021, still a large percentage of population is yet to be vaccinated.
Recently, the “Liberalised Pricing and Accelerated National COVID-19 Vaccination Strategy” was released by Ministry of Health and Family Welfare (“MOHFW”), Government of India wherein it was provided that every citizen above the age of 18 years shall be vaccinated from May 1, 2021. In addition, the Government of India had issued a “Guidance on COVID-19 Vaccination at Work-Places (Government and Private)” wherein workplaces having about 100 eligible and willing beneficiaries (employees) were permitted to organise COVID-19 vaccination sessions at workplaces (to facilitate optimal utilization of vaccine dosage and reduce wastage). Subsequently in May 21, 2021, family members and dependents of the employees, above 18 years of age were also allowed to be vaccinated at workplace.
Subsequent to the said announcements, several employers across India started advising their employees to get vaccinated, even if return to workplace was delayed or staggered. Various companies also arranged vaccination camps at their offices to get the employees vaccinated. Companies like Reliance Industries claimed to have vaccinated about 98% of their employees with at least one dose of vaccine. Some companies paid incentives to employees to get vaccinated. However, since a certain segment of population in India is still hesitant in getting vaccinated, there have been instances of employees refusing to be vaccinated, apparently on several grounds including violation of right of privacy, right to choose medication of choice or right of religious freedom and religious beliefs etc.
Given the desire of the Government of India, to have the people residing in India to get vaccinated and employers planning to open workplaces, a question more than frequently asked is whether employees can be asked to get vaccinated.
It is relevant to state that the MOHFW in December 20201, in respect to several enquiries received, issued Frequently Asked Questions (FAQs) on vaccination by individuals, and clarified that the vaccination (for COVID-19) in voluntary. MOHFW also stated that it is advisable to receive the complete schedule of COVID-19 vaccine for protecting oneself against the disease and also to limit the spread of this disease to close contacts including family members, friends, relatives and co-workers.
While MOHFW issued the FAQs, several municipal corporation authorities such as in Firozabad, Ujjain and Pimpri-Chichwad in the States of Uttar Pradesh, Madhya Pradesh and Maharashtra respectively, after having weighed in the primacy of right of public’s health at large over individual’s right or choice of administering vaccines, have incentivised vaccination by issuing orders directing non-credit of salaries to the employees who have failed to take their COVID-19 vaccine shots. Similar directions for withholding salaries of non-vaccinated employees were taken by the State governments of Assam, Jharkhand, Uttar Pradesh, Punjab and Chhattisgarh. An order dated January 16, 2021 was issued by the Civil Surgeon (equivalent to CMO/CMHO) in Koderma, Jharkand, mandating local government health workers to take Covid-19 Vaccine or otherwise their salary will be withheld.
The Government of Maharashtra Department of Revenue and Forest Disaster Management, Relief and Rehabilitation, issued an order on the March 13, 2021 wherein it was ordered that: “Essential shops owners and person working at all shops to get vaccinated at the earliest as per criteria of Government Of India”.
In the letter dated April 23,2021 issued by the Office of the District Education Officer, TarnTarn, Punjab it was stated, “This has reference to the meeting held by the Deputy Commissioner on 22-04-2021, regarding COVID Vaccination and the instructions were issued and received by this office on the mandatory COVID Vaccination of all the officers/employees. It is clearly stated that if any officer/employee is unwilling or refuses to be vaccinated, the concerned DEOs shall not draw the salary of such officers/employees.”
Some such orders were challenged before various High Courts in different States.
We are discussing certain matters hereinbelow:
Meghalaya High Court
The Meghalaya High Court vide order dated June 23,20212 has dealt with the issue of vaccination when the State of Meghalaya, through various orders of the Deputy Commissioners, made it mandatory for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they can resume their businesses. The issue that arose consideration before the High Court was whether vaccination can at all be made mandatory and whether such mandatory action can adversely affect the right of a citizen to earn his/her livelihood. The Court while referring to the FAQs issued by MOHFW held that there has been no legal mandate whatsoever with regard to coercive or mandatory vaccination in general and the COVID-19 vaccination drive in particular that can prohibit or take away the livelihood of a citizen on that ground.
Gauhati High Court(for State of Mizoram)
Similar judgment was passed by Gauhati High Court on July 02,20213,in a matter challenging the validly of clauses (in orders issued by the State of Mizoram) requiring all persons in the State of Mizoram to be vaccinated or else not being allowed to leave their houses to procure/obtain essential items/goods or earn their livelihood by working in shops/stores, driving public/commercial transport vehicles, etc. The Court while relying upon the judgment of Meghalaya High Court (June 23, 2021) held that the question for consideration is whether a person can be vaccinated against his will and whether the non-vaccination of the said individual can debar him from earning his livelihood, keeping in mind the fundamental right of a person to practice any profession, or to carry on any occupation or trade or business under Article 19(1)(g) and his right to livelihood in terms of Article 21 of the Constitution. It was held that though the State can make a law imposing reasonable restrictions in the exercise of any of the rights conferred under Article 19, so long as the said restriction is a reasonable restriction, no such law has been made by the Government. The Court further observed that even a vaccinated infected covid person can be a super spreader and thus if vaccinated and un-vaccinated persons can be infected by the covid virus and both be spreaders of the virus, the restriction placed only upon the un-vaccinated persons, debarring them from earning their livelihood or leaving their houses to obtain essential items is unjustified, grossly unreasonable and arbitrary.
Gauhati High Court (for State of Arunachal Pradesh)
In another judgment4passed on July 19,2021, the Gauhati High Court heard a matter challenging anorder of the State Executive Committee of Arunachal Pradesh for developmental works in both public and private sector. In this case temporary permits were directed to be issued provided such persons are vaccinated for COVID-19. The High Court relied upon, the RTI Information furnished by the MOHFW thatCOVID-19 vaccination is not a mandatory but voluntary and, also an answer given on March 19, 2021 in the Lok Sabha to an Unstarred Question (No. 3976) by the Minister of State of MOHFW that there is no provision of compensation for recipients of COVID-19 Vaccination against any kind of side effects or medical complication that may arise due to inoculation and vaccination being entirely voluntary for the beneficiaries. The Court observed that there is no evidence available either in the record or in the public domain that COVID-19 vaccinated persons cannot be infected with COVID-19 virus, or cannot be a carrier of the virus and consequently, a spreader of disease. The High Court thus stayed the order observing that the classification sought to be made between vaccinated and unvaccinated persons for developmental works in both public and private sector thereof, prima facie, neither being founded on intelligible differentia nor being found to have a rational relation/nexus to the object sought to be achieved by such classification (containment and further spread of COVID-19 pandemic).
Madras High Court
In an order passed on June 30, 2021 by the Madras High Court5, decided on June 30, 2021, the Division Bench of Madras High Court, while examining the question whether a right to refuse vaccination on being exercised can be held to be in negative, observed that vaccinating oneself may not only be to protect oneself but also in the larger interest of public health. The Court observed that since there is also an element of reluctance in some quarters to take the vaccine, the State should try and persuade persons with awareness campaigns and scientific data to indicate the efficacy of the vaccines and the indispensable nature thereof in dealing with the present pandemic. Indeed, vaccinating oneself may not only be to protect oneself but also in the larger interest of public health. When such larger interest of public health comes into play and it is possible that a person who has not taken the vaccine may not reveal any symptoms but still be a silent carrier, it is doubtful whether the right to refuse to take the vaccine can be exercised in such circumstances.
Kerala High Court
A writ petition6 was recently filed before Kerala High Court challenging the recent Government Order dated August 04, 2021 issued by the State of Kerala under the Disaster Management Act, 2005 which imposed restrictions on unvaccinated persons by providing that people need to be vaccinated against COVID or have a negative RT-PCR certificate to visit shops, banks, public offices, etc. Further, the said order reads as under: “Only a person who has taken at least one dose of Covid-19 vaccine before two weeks, or who are in possession of RT-PCR negative certificate taken 72 hours before or who is in possession of Covid-19 positive result more than a month old will be allowed inside (workers/visitors) in shops, markets, banks, public and private offices, financial institutions, factories, industrial establishment, open tourist spaces, and other establishments.”
The petition was heard by the Kerala High Court on August 9, 2021 and the State Government’s response has been sought.
Supreme Court of India
A writ petition7 was recently filed before the Hon’ble Supreme Court of India primarily for seeking directions to release the entire segregated trial data for each of the phases of trials undertaken with respect to the vaccines being administered in India. In the said petition, apart from other reliefs, on the grounds of right to privacy, autonomy of individual, right of informed consent alongwith right of self-determination, prayer was inter-alia made to declare that vaccine mandates, in any manner whatsoever, even by way of making it a precondition for accessing any benefits or services, is a violation of rights of citizens and unconstitutional.
As a latest development, the Hon’ble Supreme Court on August 9, 2021 while hearing the said petition refused to allow the said prayer observing that the steps of administrating vaccination were being taken by countries across the world to push vaccination and no measure should be taken that will fuel vaccine hesitancy.
Glimpses of International Developments
In some jurisdictions overseas, being vaccinated is becoming a mandatory condition for entry to a workplace. Mandatory vaccination is already prevalent for employees in some high-risk industries, such as aviation, healthcare and hospitality, etc., and for the workforce employed in these industries, vaccination has been mandated by public health orders.
Certain countries including Canada, Australia, several Caribbean countries, as well as some countries in Europe, seem to have laid down polices whereby vaccinations are mandatory under law for person in certain sectors.8
2‘ Registrar General, Vs. State of Meghalaya High Court of Meghalaya’ PIL No.6/2021
3 Dinthar Incident Aizawl Vs. State of Mizoram and 11 Ors Aizawl” WP(C)/37/2020
4Madan Mili v. Union of India” PIL 13/2021
5M. Karpagam vs. Commissionerate for the Welfare of Differently Abled”, WP No. 11850 of 2021
6 Pauly Vadakkan vs. State of Kerala, WP(C) 9035852/2021
7 Dr. Jacob Puliyel vs. Union of India & Ors.’, W.P.(C) No. 607/2021
8As per media reports available on Reuters (https://www.reuters.com/world/countries-make-covid-19-vaccines-mandatory-2021-07-13/), the following is the list of some of the countries with compulsory vaccination policy for certain groups:
Australia decided in late June, 2021 to make vaccinations mandatory for high-risk aged-care workers and employees in quarantine hotels.
New York has mandated its state employees to either get vaccinated or get tested on a weekly basis from September 6, 2021. California Governor Gavin Newsom said that all state employees would be ordered to get vaccinated starting Aug. 2 or undergo testing at least once a week. Several other US states have issued similar guidelines for government employees, health workers, and other groups. High-profile employers such as Delta Airlines, fitness company Equinox, Facebook, Microsoft, Google, Lyft and Netflix seem to have introduced polices for vaccination as mandatory condition of entry to workplaces, including offices.
It is mandatory for care home workers in England to have vaccinations from October,2021. English nightclubs and other venues with large crowds will require patrons to present proof of full vaccination from the end of September.
The French parliament on August 2,2021 approved a bill which will make vaccinations mandatory for health workers as well as require a bolstered health pass in many social venues.
It has since March 21, 2021 has operated a broad “no jab, no job” policy in both public and private sectors. In May, Saudi Arabia mandated that all public and private sector workers wishing to attend a workplace get vaccinated, without specifying when this would be implemented.
Italy has since March 2021mandated all health workers, including pharmacists, to get vaccinated and those refusing vaccines could be suspended without pay for the rest of the year.
Indonesia made inoculations mandatory in February 2021, threatening fines of up to 5 million rupiah ($357).
In July, 2021 Turkmenistan becomes first country in the world to make vaccination mandatory for all adults.
Fiji’s government ordered on July 09,2021 that it will enforce vaccination of all the employees.
Anhad Law’s Perspective
The issue of mandatory vaccination for the employees is significant and it seems to be common across countries where law does not provide for mandatory vaccination. Owing to little jurisprudence and case laws on this subject in India, this issue is significant for the employers who need to re-assess the health and safety practices to ensure a safe workplace for workforce, customers and visitors.
It may be noteworthy to mention that Central or State Governments in India exercising the legal rights could have the legislative mandate to direct mandatory vaccination at workplace especially of their employees. The Parliament and State legislatures have been conferred legislative mandate to enact a specific legislation incorporating such an obligation. An apt example for this would be the Compulsory Vaccination Act, 1892 enacted by the British government to deal with the smallpox epidemic. Presently, the Indian Government could also pass an order under the existing laws such as the Epidemic Diseases Act, 1897 to empower State governments to take appropriate measures necessary to prevent the outbreak or spread of an epidemic disease. Additionally, the National Disaster Management Act, 2005 confers wide powers to the National Authority and the National Executive Committee that could pass appropriate orders to mandate compulsory vaccination at each State / Union Territory level.
It is possible that in case of any further adversity faced by the Central / State governments, these governments may individually or collectively decide to pass appropriate orders / legislations making COVID-19 vaccination mandatory for all eligible for the same. However, in the event the same is done by the Government, the employers in India need to be mindful of the legal provisions associated with the fact that records of vaccination status of employee amounts to health information/ medical records and are covered under ‘sensitive personal data of information’ (“SPDI”) as defined under Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules,2011, and thus the employer will be required to ensure compliance with the applicable requirements laid down under law. It is also possible that in case post-vaccination, an employee faces material health issues, then in addition to the relevant government authorities, the employer may also be subjected to legal consequences.
Notwithstanding the above, one cannot ignore the fact that in case of an establishment, it is the employer who has the legal obligation to take reasonable care and appropriate steps to ensure safety of his employees and provide a safe workplace.
The Factories Act, 1948, that has been in existence for more than seven decades provides for the safety aspects to be covered by an employer including measures to be taken to promote health and welfare of its workers employed in factories. As per Section 6 of the Occupational
Safety, Health and Working Conditions Code, 2020 (to be notified shortly) which deals with duties of an employer, every employer is mandatorily required to ensure that workplace is free from hazards which cause or are likely to cause injury or occupational disease to the employees. An employer is further required to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees, provide annual health examination or test free of costs to such employees of such age or such class of employees of establishments or such class of establishments, as may be prescribed by the appropriate Government. Similarly, State specific Shops and Establishments have certain obligations with regard to a clean and safe workplace to be provided by an employer.
While it is yet to be seen whether a formal decision is taken by the Central government / State governments making vaccination mandatory, an employer is obligated to find legally correct ways to ensure that it complies with its obligations under applicable laws to provide a safe workplace to its employees besides ensuring health and safety of his employees. While it may vary from sector to sector, depending upon a sector (s), employers may want to engage in discussions with their employees, spread awareness amongst them to ensure that workforce and/or their families are vaccinated. It may also be prudent that industries / trade bodies also help in building consensus amongst employers in setting standards of compliance across several sectors in this aspect.
It may also be advisable for the employers to make health and safety as a priority and make forward looking policies attributing importance to health or safety of employees not merely as an obligation of employer but also an equal responsibility of employees.
-Manishi Pathak, Founding Partner and Ranjan Jha, Partner
Disclaimer: The contents of the above publication are based on understanding of applicable laws and updates in law, within the knowledge of authors. Readers should take steps to ascertain the current developments given the everyday changes that may be occurring in India on internationally on the subject covered hereinabove. These are personal views of authors and do not constitute a legal opinion, analysis or interpretation. This is an initiative to share developments in the world of law or as may be relevant for a reader. No reader should act on the basis of any statement made above without seeking professional and up-to-date legal advice.