A normal working life and a shot in the arm, thank you!

The government has announced major relief in the corona measures, and many now see the possibility of returning to a more normal working life. One of the main reasons for this is the high number of people who have received the corona vaccine. Many employers therefore want to map the employees' vaccination status and ensure that as many people as possible are vaccinated. But what is the employer allowed to do? We answer five key questions related to vaccination in working life.

1. Can employers order employees to get vaccinated?

No. In Norwegian legislation, only public authorities can impose vaccination (Section 3-8 of the Infection Control Act). The protection against encroachment on the individual's privacy is strong in Norwegian law and in society. During the corona pandemic, the authorities have therefore stated that vaccination should be voluntary and have so far not considered vaccination orders to be relevant.

Several also believe that a vaccination order in any case will be unthinkable in Norway because it will be contrary to both the Constitution and Norway's human rights obligations.

That said, the employer is of course free to encourage employees to get vaccinated, as long as it is done in a justifiable and considerate manner. The employer can also arrange for the employees to be vaccinated, for example by giving paid time off when employees are getting their shot in the arm.

2. Can the employer ask employees if they have been vaccinated?

It depends. Asking employees about vaccination status is a «control measure» according to the Working Environment Act, Chapter 9. This means that vaccination surveys can only be carried out in accordance with the rules in the Act.

First, the control measures rules require that mapping of vaccination status has a justifiable basis in the company's conditions. Working environment, infection control and health purposes are examples of conditions that can constitute such grounds. However, it is not enough to refer to a justifiable purpose in the business. A justifiable purpose is also required towards the individual employee.

For example, the same infection control considerations will not necessarily apply to the waiter as to the finance manager at the same hotel. In addition, it is required that the control measure is suitable for achieving the purpose of the measure. This condition will not be met if the purpose can be achieved by other and less intrusive measures, such as general infection control measures.

Secondly, it is required that the measure does not entail a disproportionate burden on the employee. I.e., that there must be a proportionality between what the employer seeks to achieve and the consequences it has for the employees that the employer obtains information about vaccination status.

To determine if these conditions are met, the employer must make a risk assessment. For employees who work with vulnerable groups or who are close to customers, the requirements for justifiability and proportionality will be more easily met.

In the case of office employees who sit in a home office or their own cell office, on the other hand, the risk of infection will be low in any case. In such matters, it will hardly be justifiable or proportionate to map the employees' vaccination status.

Finally, it is also required that the employer discusses the measure with employee representatives before it is implemented, and that regular assessments are made of whether the conditions are still met. The discussions and assessments should be documented in writing.

3. Can the employer store information about vaccination status that employees have provided voluntarily?

No. If the conditions for asking employees about vaccination status are not met, the employer cannot store information that employees provide voluntarily either.

If the conditions for control measures are met, so that the employer is allowed to map the vaccination status, it is also important to remember that the processing of the vaccination information must take place in accordance with the rules in the Personal Data Act and the GDPR.

This means, among other things, that the employer must inform the employees in advance about the basis for the processing and what rights they have to access, correction, etc. The processing must also take place in a way that ensures the necessary data security and confidentiality.

4. Can the employer require the unvaccinated to take a corona test before they show up for work?

It depends. Similar to mapping vaccination status among employees, corona testing is also a control measure that must follow the rules in the Working Environment Act, Chapter 9. I.e., that the requirements for justifiability, proportionality and discussion also apply to corona testing.

At the same time, the corona test is considered a «medical examination» according to the Working Environment Act, Chapter 9. This means that more is needed to implement the measure. It is only in three specific situations that medical examinations (including corona test requirements) may be required:

• when it follows from law or regulation,
• for positions that involve particular risk,
• when the employer deems it necessary to protect life or health.

It must therefore be considered specifically whether the conditions for requiring coronal testing are met or not. However, the threshold is high anyway, and we recommend seeking advice if corona testing is considered a relevant measure in the company.

5. Can the employer assign unvaccinated employees to other tasks?

The employer may have the right to change the work tasks of unvaccinated employees without their consent. This can then take place by virtue of the so-called the employers right to manage, which applies in all working relationships.

It must be considered specifically whether the change in the employee's work tasks is within or outside the employers right to manage. To assess this, the employer must examine whether there are restrictions in the right to manage, for example by the employment contract or a current collective agreement stipulating the types of tasks the employee must perform.

In addition, the change must be justifiable, i.e., that the basis for the employer's decision must be reasonable and that the decision must not be arbitrary or based on external considerations.

If there are no restrictions in the employers right to manage, and the change of tasks is justifiable, the employer may decide to set the employee for other tasks. If, on the other hand, the change is in conflict with the employment contract / collective agreement or is not justifiable, it will be outside the employer's right to manage.

In that case, the employer must either (i) refrain from changing the work tasks, (ii) try to enter into a voluntary agreement with the employee on changed tasks or (iii) implement the change in the form of redundancy with an offer of suitable alternative employment, i.e., a termination of the existing employment contract at the same time with an offer of a new employment contract with changed terms.