On 7 May 2021, the Saudi Arabian Ministry of Human Resources and Social Development (MHRSD) announced that it will be mandatory for public and private sector
workers to have been vaccinated against COVID-19 in order to attend the workplace.
On 18 May 2021, the Ministry of Interior (MOI) further clarified that from 1 August 2021, attaining COVID-19 vaccinated status will be mandatory for the following:
- Entry for all economic, commercial, cultural, entertainment or sporting activities
- Entry for all cultural, scientific, social or entertainment events
- Entering into all governmental or private establishments (whether to perform business or audit)
- Entry into all governmental or private educational facilities (whether to perform business or audit)
- Use of public transportation
At this stage, the mechanics of how the proposed mandatory requirement will operate has not yet been clarified – for example, the scope of any exemptions being applied for those who cannot receive the vaccine for medical reasons. It is yet to be confirmed which brand of vaccines will be acceptable/required as part of this policy, however, we anticipate any requirements around the brand of vaccine will be as recognised by the “Tawakkalna” mobile application which we understand will be used to check the immunisation status of citizens and residents – further guidance around the implementation of this is expected in the coming weeks. We will be issuing a further update as and when there are any further developments and formal government guidance is published in the lead up to 1 August, which may impact the position and inform the approach of companies in KSA.
Employees Who Refuse to Vaccinate – Initial Considerations for HR
As the proposed rule is pursuant to government policy, this is a legal requirement prescribed for organisations in KSA to adhere to, so employers will have the ability to insist/require that their respective staff be vaccinated against COVID-19 in order to attend the workplace.
In the context of individuals who, by virtue of their job role and functions, are required to be in the workplace, there would be a strong argument that an employee’s refusal to undergo vaccination before 1 August would constitute a failure to comply with a reasonable management request and give the employer a right to commence disciplinary proceedings as required. Article 66 of the KSA Labor Law permits a number of potential disciplinary penalties that can be enforced by the employer (in addition to any other penalties set out in a company’s internal regulations as lodged with the authorities in KSA). The most relevant in this case would be:
- Fines (for an amount not in excess of a five-day wage)
- Suspension from work and withholding of wages (no more than a five-day wage shall be deducted from wages in one month in payment of fines, and any suspension from work without pay may not exceed five days a month)
- Dismissal (see below for further details around the grounds in which termination could be effected) Under Article 80 of the KSA Labor Law, there are certain grounds under which an employer may dismiss an employee without notice (and without payment of an end-of-service gratuity). The most relevant and likely applicable ground in the scenario of an employee refusing to vaccinate would be dismissal on the basis the individual “fails to perform his/ her essential obligations arising from the work contract, or to obey legitimate orders”.
While there is obviously no guidance or precedent from the courts as yet to test whether there would be scope to dismiss an individual on this ground should they refuse to vaccinate, our view is that there would be at least an argument to do so given the decision not to adhere to the company’s instruction would be in direct contravention of government requirements in the Kingdom, but this is something to watch closely in the coming months.
Please note, if an employer were to implement disciplinary action under Article 66, or under the company’s internal regulations and/or rely on any of the grounds to dismiss under Article 80, while there would be fairly substantial grounds for doing so, the company would still need to give the employee the opportunity to object to the proposed sanction/termination of employment (perhaps, as part of this, giving them an opportunity to reconsider the decision not to vaccinate in order to prevent dismissal).
Employers in Saudi Arabia: Be Prepared COVID-19 Vaccinations to Be Made Mandatory From 1 August for Employees to Attend the Workplace June 2021 Overall, as this issue remains untested within the courts and is not likely to be tested imminently until after the requirement comes into force, there is a risk that the employee may be able to claim that they have been arbitrarily dismissed.
Impact on Remote Working Employees – One Rule for All?
Notwithstanding our comments above, while employers will have the ability to require staff be vaccinated, it is arguable that this only extends to facilitating the physical return of employees to the workplace. It is unclear whether the new rule can be relied upon for those individuals who are not physically required to attend the workplace in order to perform their duties and/or who (by virtue of their role) are, have been and are capable of working from home or remotely and, therefore, do not necessarily need to be vaccinated if they wish (and an employer agrees) for a remote working arrangement to continue. There is no current guidance around this, so employers will need to be mindful of mandating vaccinations among its workforce where there have been individuals that have been allowed to work from home and have done so effectively during the pandemic.
Ultimately, in the absence of any guidance, employers will need to find a balance, as requiring individuals to return to the workplace remains a grey area during COVID-19 times. As it stands right now, our view is that there is a good argument for employers to make that as it is (usually) a contractual requirement of employment for individuals to work from a prescribed place of work/at a location as per the employer’s instructions and considering this in tandem with the government’s mandatory requirement, that individuals should be required to attend the workplace and therefore undertake vaccination if they have not already. However, we would also flag that whilst the legal argument may be weak for any employee to push back on this if they insisted on continuing to work from home in order to avoid vaccination, an employer would need to consider the reputational/PR aspects of declining any such ongoing remote working requests for individuals who do not wish to undergo vaccination.
It is, however, important to note that, as vaccination will be a mandatory requirement in order to return to the workplace and will further extend to simple actions such as attending live events, ultimately it will increasingly become difficult for individuals to do many things if they are not vaccinated, so we anticipate the level of push back from residents/citizens in KSA should be very limited in this regard.
How We Can Help
We are anticipating formal guidance and input from both the Ministry of Health and MHRSD in the coming weeks, which should clarify the scope and remit organisations will have to take action against employees following implementation of the mandatory requirement. If you would like further information on the new mandatory rule and to be kept updated in respect of any upcoming developments in this regard, please do get in touch.
We can provide practical support to ensure your organisation is best prepared for the implementation of this new rule, including drafting appropriate communications with personnel, amending contractual wording/internal policies to mitigate any potential risks of claims for arbitrary dismissals, and advising on any cases whereby individuals are home working and/or are medically unable to receive a vaccination. We can support your company in dealing with these issues and would be happy to discuss how we can help you.