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Trick or Treat? Can Portuguese employers grant benefits to workers already vaccinated against Covid-19? | Maria Barbosa, Managing Associate of CCA's Labour Department
Lately, we have often faced questions such as: Can employers grant benefits or other perks to workers who are already inoculated against Covid-19? And can they require workers to present a vaccination certificate to enter the workplace or even for hiring purposes?
The truth is that the immense creativity of some companies abroad has flooded Portuguese employers, who wonder if they can implement such measures, or similar measures, in Portugal.
For example, as of July 12th at Morgan Stanley Bank, entry is only allowed for workers who have already been vaccinated. In the United Kingdom, several companies are including a compulsory vaccination clause against Covid-19 in their employment contracts. In the United States, and even in Germany, there are companies that provide a one-off subsidy to promote vaccination among their employees. There are also employers who plan to allocate additional vacation days (between 3 and 10 days) to workers who are vaccinated.
Would the implementation of benefit / advantage policies of this nature be lawful in Portugal? The truth is that opinions on this issue are not consensual, but our opinion is that in most cases the answer will be no, mainly for the following reasons:
The first reason is how a particular employer knows whether or not the worker has been vaccinated. In fact, under the terms of the Labour Code, the employer cannot require the job seeker or worker to carry out or present medical examinations and tests, except when these are intended to protect the worker or third parties, or when specific requirements inherent to the nature of the professional activity justify it and the corresponding reasoning is provided in writing. In other words, in order for the request for information on vaccination to be lawful, reasons relating to the protection of the worker or third parties, or to the professional activity itself, must prevail over the worker's right to reserve information about his health and the results of medical examinations and tests.
However, the balancing of the two rights is exactly one of the most controversial points. Indeed, while there are those who argue that the mere fact that we are facing a pandemic justifies the employers' request for information; on the other hand, there are also those who defend - a position that we support - that this request by the company cannot be made to just any worker, it is essential to assess whether the professional activity carried out by the worker and place of work may justify a limitation of the right (such as, for example, a nurse who works in a retirement home or a doctor who works in a hospital). In our opinion, since vaccination is not compulsory, it will always be necessary to carry out a proportionality weighting, to assess whether or not the worker's right to reservation overlap with public health issues, and only in very special cases will it be possible to require workers to provided information on whether or not they have already been vaccinated.
The second reason is related to potential discrimination between workers. In fact, by conferring benefits / advantages to those who have already been vaccinated, one may discriminate against those who have not yet been vaccinated, regardless of the respective reason. From the perspective of a vaccinated worker, it will certainly be fantastic to receive more vacation days. On the contrary, the worker who has not been vaccinated will certainly feel that he is being punished when he is not granted additional vacation days. It seems to us that the risk of being faced with discriminatory situations when applying a benefit/advantage policy is high and could lead to greater discomfort on the part of unvaccinated workers or even an increase in litigation.
It therefore remains to be seen whether the legislator will integrate into the existing legal list the possibility for the employer to request the vaccination certificate as a possible measure to safeguard the health and safety of the worker, third parties or the activity itself.