【Column】Private Sector Vaccine Mandates Around The World

Private Sector Vaccine Mandates Around The World

As discussed in ”Government Vaccine Mandates Around the World”, the scope of most government vaccine mandates have been limited to healthcare and care home workers. Some countries such as the United States, Italy and China have made sweeping orders covering most of their populations. We now examine prevalence and legality of workplace mandates. In particular, we look at the factors companies should consider before implementing mandates and the exemptions that some employees can claim.

United States

Private corporations in the United States have begun announcing vaccine mandates following President Biden’s announcement and the FDA’s full approval of the Pfizer and Moderna vaccines. The legality of vaccine mandates is correlated with the strength of relevant employment protection laws. In countries where labour laws are considered employee-friendly, corporate mandates are less likely to be deemed permissible.

In the U.S, largely because of the employer-friendly employment laws and the prevalence of ‘at-will’ employment, company-imposed mandates have been less controversial. Many legal professionals agree that, provided that anti-discrimination laws (based on gender identity, sexual orientation, race, religion, ethnicity, belief, etc.) and union agreements are not violated, corporations are legally permitted to impose vaccine mandates.

Under the anti-discrimination laws, employees who hold strong religious beliefs or who cannot be vaccinated on medical grounds are exempted from the vaccination mandate. For employers imposing mandatory vaccination policies, employees have invoked the religious belief exemption. In Washington DC for example, more than 400 fire and emergency medical workers sought religious exceptions to a city-imposed mandate. In order to qualify for a religious exemption, an employee must meet a high threshold, proving that: religious belief is genuinely held; and they have acted consistently with such belief. Such a religious belief should also have been communicated to the employer in the past.

If there is a union contract in place, requiring vaccines might be a regarded as a material change in working conditions and, if so, such a change likely would require agreement from the union. Unions, however, have often waived the right to bargain over health and safety policies: in such cases, an employer could unilaterally mandate vaccinations.

Application in Practice

President Biden’s vaccine mandate covers businesses with over 100 employees; however, several companies have implemented their own additional measures. Companies such as Citigroup, Deloitte, and New York Times, are requiring all employees to be vaccinated before returning to the office. Others such as McDonalds, Microsoft, Goldman Sachs, and Union Square Hospitality Group go one step further and require proof of vaccination for guests and visitors as well.

Further, companies are already holding non-compliant employees accountable for their actions. CNN, for instance, fired three employees who went into work unvaccinated. Employees likely will face difficulty in challenging mandates and firings in the court, absent a religious or medical exception.

United Kingdom

In the U.K., companies have been reluctant to impose vaccine mandates. The differing approach compared with the United States reflects the greater employment law protections offered to employees in the U.K., where employees cannot be dismissed without reason or notice. Employment relationships are usually governed through a written contract, which outlines the terms and conditions of employment including the grounds upon which the relationship may be terminated. If being vaccinated was not already an existing contractual term, the employer cannot unilaterally change the terms and require employees to get vaccinated. If the employer does, then they could face litigation risk from employees who are against vaccination. With prospective employees, however, employers are likely permitted to vaccination as a requirement for employment.

Employers have a duty under the Health and Safety at Work Act to maintain a safe workspace. This means taking reasonable steps to reduce any risks that COVID-19 may expose employees. In line with this obligation, the U.K. government has advised employers to adopt a vaccination policy and to encourage employees to get vaccinated. Nevertheless, the government encouraging ‘encouragement’ does not mean it has authorised mandates. The present consensus among legal professionals and employers is that employers must balance obligations under the Health and Safety at Work Act with compliance with anti-discrimination laws when enacting vaccine policies.

Though the legality of company mandates has not yet been challenged in court, a mandate likely may be permitted in some limited cases where the request is deemed reasonable. Whether mandatory vaccination is reasonable in the circumstances is a factual inquiry: such as whether a particular workplace can be considered a high-risk one, and the kind of work employees are performing. The reasonableness standard applies to gathering of COVID-19 related personal information also. If an employer wishes to gather information regarding an employee’s vaccination status, collection of vaccination data must be necessary and relevant for the specific purpose.

Because the legality of a vaccine mandate would need to be assessed on a case-by-case basis, in practice, U.K companies (likely reassured by the lower vaccine hesitancy compared with the U.S) seem to be staying clear of this legal grey area of mandating vaccines.


Japan, unlike many countries, has not experienced stringent government-imposed lockdown rules. Because the Japanese government’s powers are constitutionally limited, it can only urge the populace to stay home and cannot impose any penalties for non-compliance. When it comes to vaccine mandates, akin to the government’s inability to impose lockdown orders, the citizen/employee-rights friendly Japanese laws are unlikely to accommodate compulsory vaccinations imposed by local governments or businesses.

Former Prime Minister Suga published a memo in response to questions from the House of Representatives to the effect that, while companies may encourage employees to get vaccinated, whether an employee is vaccinated is an individual choice for the employee. Although companies are not prohibited from asking for the vaccination status of candidates or contractors or for proof of vaccination, businesses cannot discriminate against people and other businesses because of an unvaccinated status.

In practice, big names such as Softbank, Nissan and ANA have publicly echoed this ‘individual choice’ messaging. While a dozen companies have encouraged employees to get vaccinated, to this date, no major company has made it compulsory for its employees to be vaccinated. The boldest measures came from Watami, one of Japan’s biggest restaurant operators. Watami have stated they will request employees to get vaccinated, and will regularly conduct PCR tests for those employees who wish not to be vaccinated. Employees who are vaccinated or have recently had a negative PCR test will display a sticker indicating their vaccinated status or negative PCR status. It will be interesting to see if any other Japanese companies will deviate from the ‘individual choice’ approach and make similarly bold measures. 

What does this mean for your business abroad?

Although Japanese companies may not be able to implement strict vaccine policies at home, those with subsidiaries abroad need to keep informed about local regulatory updates and set company policy in accordance with ever-changing regulations. A global one-size-fits-all company policy does not work with vaccination policies. In countries with a high level of labour protection, vaccine policies must be approached with caution. This does not mean employers should refrain from setting a policy. Even in countries where it is not legally permissible to mandate vaccines, a comprehensive policy can strongly urge employees to get vaccinated or offer incentives such as paid days off (or in certain circumstances, voucher and cash incentives may be appropriate). It is also a useful tool to set general rules to promote a safer workspace: such as preventing employees from spreading misinformation and setting a disciplinary procedure if misinformation is spread. Further, such a policy could prevent employees from asking a co-worker’s vaccination status, which could lead to workplace harassment or discrimination. Companies should consider each countries’ regulation with the nature of the work, office environment, size, and culture, and set an appropriate vaccine policy accordingly.

(Written by: Christopher StudebakerTomo Greer)

*This Column is provided for educational and informational purposes only and is not intended and should not be construed as legal advice.
For more information and questions regarding this column, reach out to us.

Christopher Studebaker
Tel: 03-6273-3519(Direct)
E-mail: chris.studebaker@tkilaw.com
Tomo Greer
Tel: 03-6273-3310(Direct)
E-mail: tomo.greer@tkilaw.com