Every company has been impacted by the pandemic but no more than the human resources department of every business.

The dilemma in a nutshell is, should an employer interfere in employees’ personal medical decisions (vaccine vs natural immunity vs no vaccine) balanced against the general wellbeing of the workforce and if so to what extent.   

The Health Ministry and the Superintendent of Public Health have taken a very bold and clear position on the matter and this directly or indirectly influences HR policies and practices. In Italy, for example, we are even seeing moves to make the vaccination of employees quasi-mandatory although this was only made possible on August 6, when the government extended the COVID-19 state of emergency to December 31, 2021.   

The topic from an HR perspective is undeniably complex and involves ethical, legal and scientific issues. To my mind, HR departments need to navigate very carefully, if they are to craft the right policies which are in the best interest of the company (the employer), its employees and key stakeholders (particularly customers).   

The assumptions we can safely make to help guide HR departments, and in some instances these are facts, are the following: 

• We do not have a national Public Health Emergency as defined by law; 
• The vaccine in the EU, including Malta, is not mandatory; 
• 92% of the 'eligible' population or 81% of the 'entire' population (i.e. 811,183 doses) is fully vaccinated; 
• Hospitalisations and deaths are low, and this is primarily due to the vaccines and levels of natural immunity in the population combined; 
• The Delta variant appears to be the dominant variant and it is now commonly accepted by experts including the CDC that both vaccinated and unvaccinated persons can carry and transmit the virus. 

Law 

The vaccine is not mandatory meaning an employer can not act ultra vires on such matters. Put crudely, you can’t force workers to take the vaccine.    Furthermore, every person has a ‘right to work’, so HR policies or even health and safety procedures can not in any way exclude or discriminate.

On the issue of discrimination, it is worth pointing out that this includes direct and indirect discrimination whereby a person is subject to physical, verbal or non-verbal pressure which undermines their dignity or which creates an intimidating, hostile or humiliating working environment.   

More worryingly, an HR head or manager could be exposing their company to unnecessary legal liability, if it can be proven that the employer is coercing or mandating its employees to take the vaccine and subsequently there are severe side effects.  

Lastly, EU law or guidance clearly states that public health restrictions must be "proportionate to the epidemiological situation in each country" and of a "temporary nature". This means that restrictions will flex up and down according to the pressure of infections on our national health service and always be of a temporary nature.   

Science 

What we know about the virus has changed a lot from last year.   

The biggest game-changer has been the Delta variant. Of particular interest, is that the virus is now being transmitted and infecting both the vaccinated and unvaccinated. I think this has changed how we look at public health restrictions and HR departments need to treat vaccinated and unvaccinated employees/workers in the same manner given how the virus has evolved.    

At least one study has shown that natural immunity could be 13x stronger than vaccine immunity. The value here is that we need to recognise that workers/employees can have natural immunity and that this is of value to the workplace as much as (if not more) than vaccine immunity.

For the sake of clarity, this is not to be misconstrued to mean that the vaccine isn’t an important tool in the fight against the virus, since it definitely is crucial and important, but more to explain that HR departments need to factor in natural immunity as well when drafting policies and procedures.   

Ethics 

The pandemic has put a huge strain on civil liberties and ethics in general.   

Every HR department needs to determine how much private medical information it needs to hold and who will have access to such sensitive information.

For example, will our customers be required to reveal proof of vaccination or immunity or a negative test to front-line workers on a daily/weekly basis? I am thinking of restaurant waiters, hotel receptionists and/or public transport drivers, to mention but a few, and is such disclosure and verification to be two-way meaning a customer has a right to demand the same from all frontline workers? How will such private medical data be handled and will it be stored or recorded?     

Conclusion 

The subject is undeniably complex and there are no simple answers. What I can say is that it pays HR heads or managers everywhere to tread cautiously and not rush into anything, since well-intentioned decisions based on a science that is constantly changing, could expose their company to unintended liability.   

Furthermore, companies should not assume government-like roles or responsibilities. So for example, if I was advising a restaurant owner I would insist on the government or its authorities carrying out the enforcement. The same applies to any business since quasi-vaccine passports started with travel, now seem to be extending to bars and restaurants but will (presumably) also be extended to most types of businesses. This exposes employers to unnecessary liability since ultimately enforcement of this scale and nature should always be of the state.   

Finally, I feel that medical encroachment in workers/employees is not the way forward for any HR department wanting to attract, nurture and retain talent.

My advice would be for them to focus on their core mandate and mission and let the government or its authorities worry about the legal, scientific and ethical issues of this pandemic.