Contributed by:
 
Date posted:

May 4, 2021

 
Are vaccinations likely to be made compulsory for all citizens?

No, at present Maltese Law does not impose mandatory vaccination, nor do we foresee that there will be any statutory provision mandating vaccinations for the whole population.

 
In this jurisdiction, are employers likely to promote, facilitate, or mandate the taking of a vaccine?

See below.

 
Promote?

Yes, most likely.

 
Facilitate?

Employers are not expressly obliged to facilitate vaccination such as through granting paid leave to their employees for vaccination. Facilitating vaccination is however encouraged and it is argued that this may be an implied obligation in terms of health and safety legislation.

 
Mandate?

No, employers are more likely to strongly encourage employees to get a vaccine. Employees cannot be forced to be inoculated without their consent.

 
Can employers make vaccination compulsory for employees?

At present, there is no such requirement and it is unlikely that this will be mandated, even for sectors such as the care sector, albeit that this cannot be excluded, especially if take up were to be low (which does not appear to be the case) and the circumstances are such that, based on a risk assessment, might require vaccination as a mandatory requirement. The employer would not be able to force inoculation without the individual’s consent, but may need to consider measures (e.g. preventing unvaccinated employees from entering the workplace, or restricting the duties, or having to work remotely) if this is necessary for health and safety considerations. Currently, private vaccination is not available. Individuals must wait until the Health Authorities make the vaccine available to them.

 
If an employer mandates vaccination, how might they respond to a refusal by a current employee to be vaccinated or show proof of vaccination?

Inoculation is not a substitute for workplace COVID measures. The employer must reassess the situation based on its particular circumstances and determine whether additional measures can be implemented to manage the health risks. Treating this as a disciplinary measure is an unlikely consideration and, whether a vaccination requirement is a reasonable management instruction, non-compliance with which could lead to disciplinary action depends on the facts of the case. Employers may wish to consider requiring employees who refuse the vaccine to sign a waiver indicating that they understand the medical risks of their decision as a condition of being permitted to enter their workplace. However, this will not necessarily exempt the employer from liability, in that the vaccine is not a substitute for other measures.

 
Are there any discrimination issues to be considered (e.g. age, religious belief, pregnancy, age)?

Should vaccination be mandated, discrimination issues could potentially arise (e.g. health condition, religious or philosophical belief) and would therefore have to be managed. Employers need to ensure that any mandatory requirement is justifiable as a proportionate means of achieving a legitimate aim.

 
What are the data protection consequences of requiring proof of vaccination?

Proof of vaccination remains unregulated, however there is pressure by employers requesting that the Government legislates to allow employers to request proof. Vaccination data is special category data, and therefore the employer must ensure that it satisfies the relevant grounds to process personal data and special category data. All GDPR principles must be complied with (particularly on transparency and security). There is no one-size-fits-all solution, and each employer must carry out its own risk-based assessment. The employer will be accountable to demonstrate compliance – and hence will need to present Legitimate Interest Assessments and/or DPIAs as well as a clear and transparent privacy policy indicating the purpose/s and legal basis for the processing, as well as the rights of data subjects. Employers must also regulate and ensure strict protocols, including in terms of access to and security of the data, as well as retention periods (which should be reviewed regularly).

 
What procedures might an employer have to follow before deciding whether to insist on vaccination?

The employer must consider a risk-based assessment to determine whether mandatory vaccination is necessary and proportionate, and this must include an assessment on the impact on privacy and managing potential issues (such as discrimination). The employer must consider its options in case of outright refusal or, in situations where an employee cannot have access to, or is unable to be, inoculated. For instance, the vaccine has not been tested on pregnant women and presently they cannot be inoculated. Where less intrusive measures may be adopted, then the employer may need to reconsider. If a policy encouraging vaccination fails, then the employer may be justified (depending on circumstances) to mandate vaccination.

 

This guide contains summaries of general principles of law. It is not a substitute for specific legal advice and should not be relied upon in relation to the application of the law or subject matter covered.

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