Alesya Pavlynska
Arzinger, Kiev
alesya.pavlynska@arzinger.ua

Kseniia Lotosh
Arzinger, Kiev
kseniia.lotosh@arzinger.ua

Introduction

In spite of unremitting pro-vaccination campaigns and sufficient supplies of vaccines against Covid-19 for the population, a large part of the workforce remains unvaccinated (even in categories where such vaccination is mandatory). Ukraine is clearly lagging behind other countries^[1] in vaccination against Covid-19.

As the voluntary vaccination campaign has basically failed and the population does not trust vaccines,^[2] the authorities have adopted new stricter measures and restrictions to keep Covid-19 outbreaks under control, such as limiting access to work for certain categories of employees who have not been vaccinated against Covid-19. As a result, employers and employees have a lot of questions concerning further work in view of rapidly changing legislation.

Legal framework for vaccination against Covid-19 in Ukraine

The vaccination against Covid-19 has long remained beyond the scope of Ukrainian legislation on mandatory vaccination. Thus, employers were not able to require their employees to get vaccinated against Covid-19.

However, in October 2021, the Ministry of Healthcare (MoH) adopted Order No 2153 (effective as of 9 November 2021) specifying a brief list of categories where employees are required to be vaccinated against Covid-19 to be able to fulfil their job duties. The Order covers employees of governmental and municipal executive bodies, as well as of educational establishments (including private establishments).

On 1 November 2021, this list was supplemented by the MoH Order No 2393 with additional categories of employers whose employees are required to be vaccinated against Covid-19 (effective as of 9 December 2021):

• enterprises, institutions, and organisations belonging to the sphere of management of central executive bodies of Ukraine;
• institutions providing social services, institutions for the social protection of children, rehabilitation institutions;
• enterprises, institutions and organisations included in the list of state-owned objects of strategic importance for the economy and security of the State, approved by the resolution of the Cabinet of Ministers of Ukraine No 83 dated 4 March 2015 (eg, Naftogaz of Ukraine, Ukrenergo, Ukrzaliznytsia).

Only persons with contra-indications to vaccination specified in a separate MoH order (eg, allergic reaction, autoimmune disease, chemotherapy treatment period, etc) are exempt from these new rules and thus allowed to continue their work as usual in the mentioned spheres without vaccination.

The current mandatory Covid-19 vaccination requirement mainly covers public sectors, though further amendments (eg, for private companies) are possible in case the pandemic situation worsens. However, employees still have the right either to get vaccinated or to refuse to provide a proof of vaccination, but with possible negative consequences for them (as indicated below).

Dealing with unvaccinated employees in the workplace

If employees refuse to get vaccinated against Covid-19, the employers cannot dismiss them for cause, as the Labour Code of Ukraine does not provide for such grounds of dismissal. Although Ukrainian laws allow the inclusion of additional grounds for dismissal into employment contracts with certain categories of employees (eg, chief executive officers), such provisions may be recognised as discriminatory or worsening an employee's standing as compared to legislative rules.

In addition, the law does not envisage the possibility of dismissal of an employee for violation of quarantine restrictions. Nevertheless, employers may warn employees about liability for such breaches and even include relevant rules into employment agreements/internal human resource (HR) orders (eg, orders on remote work or downtime). If employees violate such rules, established by the employment agreement or internal HR orders, they may face disciplinary liability measures (a reprimand, as a rule) but no immediate dismissal.

If not vaccinated, the employees to whom MoH Orders Nos 2153 and 2393 apply are to be suspended without pay until the end of the Covid-19 quarantine or until they are vaccinated against Covid-19 (with at least one dose). To avoid shortages in personnel, their employers may employ vaccinated persons to temporarily replace the suspended employees, on the basis of fixed-term agreements.

Some other employer categories (eg, entertainment, trade, restaurants, and hospitality) may be subjected to ‘red level of epidemiological danger’ restrictions that ban operating and receiving visitors, unless all employees of the corresponding establishments have at least one of the following documents:

• a Covid-certificate (international, domestic, foreign) of vaccination or recovery;
• a negative result of a PCR test taken within 72 hours of entering the establishment; or
• a negative result of rapid testing for antigen taken within 72 hours of entering the establishment.

Such employers may continue to operate only if they limit access of the employees who are unable to provide the aforementioned documents. As the new legislation does not envisage suspension without pay, employers and employees are basically confined to the following options:

• remote work (via electronic means of communication) or home-based work (eg, manual work);
• unpaid leave (until the end of quarantine or for 15 calendar days per year after the end of the quarantine);
• paid annual and additional annual leave (if any days remain); and
• downtime with the payment of two-thirds of the salary (as a rule).

At the time of writing (December 2021), almost all regions of Ukraine are in the ‘red zone’. Therefore, such restrictions are relevant for the aforementioned businesses.

All other categories of employers (eg, office work) may continue their work as previously, but compliance with all hygienic measures, such as masks and sanitisers, remains mandatory.

Ukrainian laws do not prohibit ‘segregation’ of the vaccinated and unvaccinated employees by employers (eg, transfer of the unvaccinated employees to remote work, or downtime for them, if necessary). However, such actions may be recognised as discriminatory against unvaccinated employees, especially in sectors where legislation does not oblige all personnel to be vaccinated in order to continue business operations.

Another interesting topic to consider is the possibility of demanding information on vaccination status from employees and candidates for hiring. Pursuant to Article 25 of the Labour Code of Ukraine, employers may not require candidates to provide documentation that is not directly allowed by Ukrainian legislation. However, such persons may voluntarily notify the future employer about their vaccination status. The same applies to current employees, as the vaccination against Covid-19 is voluntary and employees may still refuse to get vaccinated (with respective negative consequences, as outlined above).

In addition, the collection of personal data, such as health data, which is classified as ‘sensitive’, is only allowed with the consent of employees and/or job candidates and must comply with relevant Ukrainian legislation on the collection and processing of personal data.

Conclusion

In conclusion, it is worth noting that the requirements to be vaccinated are applicable in Ukraine only to certain special employee categories determined by legislation. However, even in such special cases, employees are free to refuse to be vaccinated against Covid-19, but with negative consequences (suspension without pay). For all other categories of employees, the rules are more relaxed. Employers of certain businesses (eg, hospitality, restaurants, shopping malls, etc) operating within the ‘red zone’ territory cannot admit their employees to the workplace without being fully vaccinated or without one of the Covid documents mentioned above. Downtime, remote work, or vacation are to be applied in such cases, as such employers are not allowed to suspend their employees.

Therefore, any restrictions on unvaccinated employees should be applied very carefully and only if allowed by the legislation, as these may be considered as discriminatory or worsening an employee’s standing as compared to legislative rules and thus be rendered invalid.