Liability Risks for Companies Vaccinating Workers Could Stifle Corporate Travel’s Return

There’s likely to be considerable adoption of digital health passports by companies later this year, as employees say they would feel safer traveling for business after being vaccinated, according to a new poll.

However, the research from the Global Business Travel Association, which reveals 79 percent of its members and stakeholders would be “very comfortable” or “comfortable” traveling for business after receiving the Covid-19 vaccination, is likely to widen the debate around privacy and discrimination.

Many also think airlines should require passengers to show proof of vaccination before flying, according to the U.S.-based trade body’s survey of almost 800 people carried out February 8 to 15.

What Happened to Pre-Travel Tests?

Despite a focus by governments and airlines on pre-departure and arrival testing, just under half (49 percent) of the association’s poll respondents supported mandatory Covid-19 tests in order to travel for work. Of those, 69 percent said they’d feeler safe having face-to-face meetings, and 64 percent said it would help resume business travel.

And of the 779 people polled, 15 percent said mandatory pre-travel tests were a bad policy, and 16 percent were unsure.

The reason given behind the swing to vaccinations is that with testing, employees could test negative one day and then positive the next day, with privacy concerns also a worry.

However, experts have warned travel managers will face a number of challenges if their company introduces vaccinations as a requirement to travel, or return to the workplace.

“Where foreign travel is a requirement, arguably vaccinations and boosters against new variants are likely to be needed,” said Ian Skuse, partner at law firm Blake Morgan. “Employers need to carefully manage those employees refusing their jabs and ideally have contracts and policy manuals up to date to deal with this issue.”

But the question many companies will be asking now is: what if employees refuse to be vaccinated?

“There is currently a debate among lawyers as to whether a dismissal might be fair, and around various employment law rights that might protect the refusing employee,” Skuse said.

Some employers could end up being sued for requiring staff to have proof of vaccination before allowing them to return to the workplace, according to research firm Gartner. “The corresponding litigation will slow return-to-workplace efforts even as vaccine usage increases,” said Brian Kropp, its distinguished vice-president, HR research, in a recent post.

But Skuse said there was a “duty of care” by employers to recommend vaccinations for employees and travelers that might be exposed to Covid.

“Is the employer’s instruction to be vaccinated a reasonable instruction?,” Skuse said. “If it is, then is there a procedure that follows before any dismissal process, where the employee has the chance to explain how it is unreasonable to expect him or her to vaccinate.”

There may come a point where dismissals can be made, but only where alternatives  are considered. “Is the sanction too stringent and disproportionate where alternative jobs might be offered, such as swapping foreign travel for Zoom meetings for overseas clients,” he added.

Organizations will also need to recognize circumstances where they shouldn’t propose vaccines, on the grounds of medical, disability or pregnancy, for example. They may also face cases of indirect discrimination relating to age, sex, pregnancy, religion where substantial claims could be made. For example, currently older workers are more likely to have had the vaccination.

“The scope for mandatory vaccination and testing will inevitably increase. Human resources teams are already looking at company policy in this area and alterations to contracts and procedures,” Skuse said.

Compulsory Vaccines Are Nothing New

Even at this relatively early point in the debate, some travel organizations are mandating vaccines, including Saga, which has made the decision not to allow a customer to travel with it if they choose not to receive the vaccine. “The majority of our customers fall into the at-risk age bracket and our priority is their safety and wellbeing,” the company said.

Dubai’s Emirates, meanwhile, is offering vaccines to pilots and cabin crew.

In the UK, some businesses are drawing up “no jab, no job” contracts for employees, following a politician’s apparent endorsement, expanding the requirement beyond health workers who are at more risk.

However, with a lack of international consensus, or shared public policy in relation to forced testing and vaccination for domestic and international traveling, companies will face the dilemma of private corporate policy versus personal freedoms and rights guaranteed by law.

This could increase the chances of them becoming a target for interpretation of their  policies, another legal expert has warned.

“There’s no shared standard between countries to agree procedures. Even the proposed digital health passports will face a long run before being widely adopted,” said Alex Thompson, CEO at Legaroo.

“When that happens, Covid will probably be contained and will not be a menace as it was in 2020 and 2021. So, would governments be inclined to cooperate towards a centralized health data system for travelers?”

Thompson said his advice is that employers should start asking questions now and review their health policies, including traveling and risk management, with specialist risk consultants like Peregrine already auditing in this field.

Management teams, legal counsel, health advisors and employee representatives should also start talking to each other, and draft policies based around “work in the office” or “on the road”, including any exemptions and waivers, he added.

And as long as it doesn’t contravene public regulations and recommendations, protocols to record employee’s arguments and reasons why they shouldn’t be vaccinated or tested can be established.

With only  7 percent of the Global Business Travel Association’s survey respondents saying they had received a first vaccination dose, there’s a long road ahead.