LexisNexis

The right to go to work – the employer as regulator in the UAE

Wednesday 22 December 2021

Gordon Barr
Al Tamimi & Company, Dubai
g.barr@tamimi.com

Sabrina Saxena
Al Tamimi & Company, Dubai
s.saxena@tamimi.com


Introduction

As a result of the Covid-19 pandemic, each country within the Gulf Cooperation Council (GCC) put in place a number of health and safety measures to seek to reduce the spread of Covid-19. One of the main initiatives adopted was the requirement to work from home and not attend the office.

At the beginning of 2021, to differing degrees, the respective governments of GCC countries started to provide Covid-19 vaccinations to nationals and expatriate residents. As a result, there has been a relaxation on the requirement to work from home and many employees have returned to work in offices.

Employers across the GCC have an obligation to protect the health and safety of their employees in the workplace and provide a safe working environment. Therefore, it is important that employers carefully consider their obligations prior to requiring employees to return to office-based working.

Can an employer insist on vaccination as a condition for visiting the workplace?

​​​​​​​Bahrain​​​​​​​

No. The Bahraini government has not made any announcement requiring employees to be vaccinated and as such, employers would not have any legal basis to mandate obligatory vaccination. It is worth noting that Bahrain does, from time to time, issue temporary decisions restricting entry to certain malls, restaurants, cafes, gyms, salons, parks and so on, only to individuals who are fully recovered from, or vaccinated against, Covid-19. If the employer’s office is located in a building that requires verification of recovery/vaccination, individuals may be required to provide proof of vaccination to Bahraini officials at the building entrance. In such a case, employers may require that employees get vaccinated, however, the employers will need to carefully consider any refusal to obtain the vaccine where this is based on religious or medical grounds.

KSA

Yes. The Kingdom of Saudi Arabia authorities announced that, with effect from 1 August 2021, employees must be vaccinated in order to attend the office. There are exemptions for employees who are unable to be vaccinated including for medical reasons. Furthermore, the Saudi authorities announced that, with effect from 10 October 2021, employees will need to have completed the required doses of an approved vaccine in order to attend the workplace. Employers must also require employees to prove their vaccination status through the ‘Tawakkalna’ smartphone app as a condition of entry to the workplace.

Kuwait

No. At the time of writing there is no requirement for Covid-19 vaccination under Kuwaiti law. Law No 8 of 1969 as amended by Law No 4 of 2020 Regarding Health Precautions Against Contagious Diseases (the ‘Contagious Disease Law’) does not mandate vaccination for Covid-19. However, decisions and laws in Kuwait change rapidly, and although currently vaccination is voluntary, the situation could abruptly change. Article 12 of the Contagious Disease Law states that the Minister of the Ministry of Health is entitled to issue a resolution of mandatory vaccination to protect newly born infants or to protect a certain group of the population or all of the population against any contagious disease in accordance with public health prerequisites.

​​​​​​​Oman

Yes. The Omani government issued a decision in August 2021 specifying that a vaccination certificate is required to enter any government or private establishment in Oman. All public sector employees are permitted to return to work premises at 100 per cent capacity provided that all employees have been vaccinated. Employees who have a health condition that prevents them from receiving the vaccine are exempted from this requirement. An employee can only refuse getting the vaccine if he or she holds a health certificate indicating that he or she is exempt. If employees refuse to get the vaccine and do not have a valid health certificate, by law, the employees are not permitted to attend the work premises until they have been vaccinated.

Qatar

No. Vaccination is not mandatory in Qatar and, as such, employers cannot force employees to be vaccinated. However, Qatar authorities have mandated that employees should provide evidence of vaccination, Covid-19 recovery or weekly negative Covid-19 test results (rapid test or PCR) in order to be allowed to enter the work premises. Given that these other options are available, an employer would not have any legal basis to enforce obligatory vaccination on their employees.

UAE

No. Currently, the United Arab Emirates’ government has not made any announcement requiring UAE citizens and residents to take a vaccine. The federal law on communicable disease control (Federal Law No 14 of 2014, as amended) allows the government to impose mandatory vaccination on individuals to protect public health via the Ministry of Health and Prevention, which is responsible for determining whether to roll out a mandatory vaccination program. As at the time of writing, Covid-19 vaccinations remain voluntary (December 2021).

Can an employer insist on an employee being tested for Covid-19?​​​​​​​

Bahrain

Potentially. Employers can implement a rule requiring staff to test for Covid-19 if they are to attend the workplace; however, employers would need to demonstrate that this is necessary for ensuring the health and safety of all employees. The test results should not be recorded unless privacy laws have been adhered to.

KSA

In short, no. However, on the basis that Covid-19 vaccinations are mandatory for employees in order to gain access to workplace premises (and any government, private or non-profit establishments) unless medically exempt, the requirement to be tested is superfluous, at least for workplace access. Employers can insist on employees being Covid-19 tested for business travel but airline rules on this already exist.

Medically (or otherwise justifiably) exempt unvaccinated employees are anyway permitted workplace access, but it is unclear whether an employer can insist on these employees being tested. Specific rules on this would need to be contained in a clear Covid-19 policy and consequences for any refusal to be tested judged on a case-by-case basis.

Kuwait

There is no requirement in the State of Kuwait for employees to take PCR tests. However, if employees travel, on arrival in Kuwait they must undergo a PCR test within 72 hours and quarantine at home for seven days. However, quarantine can end early if the PCR test carried out on arrival proves negative.

Oman

No, the Omani government does not require employees to test for Covid-19. Employees are only required take a Covid-19 test if they have returned from abroad.

Qatar

Even though the vaccination is widely available in Qatar and the majority of employees have already been vaccinated, weekly Covid-19 test results are required for the unvaccinated.

UAE

The Abu Dhabi government has confirmed a requirement that all employees (vaccinated and unvaccinated) employed in the private sector must undertake a PCR test every 14 days to ensure that they remain Covid-free. There has been no similar guidance issued in Dubai or any of the other Emirates.

Can an employer segregate vaccinated and unvaccinated employees?​​​​​​​

Bahrain

Potentially. There are no laws and/or regulations that allow or restrict employers from segregating vaccinated and non-vaccinated employees. Employers may choose to segregate their employees to the extent that this is necessary for ensuring the health and safety of all employees. However, if employers choose to adopt such segregation, they will need to ensure that the segregation is non-discriminatory.

KSA

Notwithstanding that employers in KSA must require employees to be vaccinated in order to attend the workplace, government guidance on protective measures is still in place. This includes a number of restrictions, such as wearing face coverings in communal areas, observing social distancing, temperature checks upon entry to the premises, having separate entrances and exits, provision of an isolation room on site, and reporting requirements if any employees test positive for Covid-19. Employers should monitor government guidance from time to time to ensure they are complying with any updated requirements.

Kuwait

Kuwait authorities have not published regulations stating that employees should be segregated based upon their vaccination status. However, wearing masks is mandatory for everyone in all workplaces. Further, there should be a commitment to continuously sterilise frequently used surfaces and prevent sharing work surfaces, use of hand sanitisers, and employees should eliminate tangible means of communication and payment, such as paper and cash.

Oman

Employees in Oman can only attend the workplace if they have been vaccinated. Employees that have a health condition that prevents them from receiving the vaccine are not segregated from vaccinated employees. Therefore, employers must continue to ensure that they have taken all necessary health and safety measures recommended by the authorities for the workplace and any specific measures required for the employee’s role (including the requirement to wear masks, social distancing, etc).

Qatar

No. The Qatar authorities continue to mandate health and safety measures, such as mandatory wearing of masks in closed spaces, mandatory activation of the Ehteraz app upon leaving home (the Ehteraz app is a government-mandated smart phone app that residents and visitors to Qatar must install). There are also restrictions on the maximum capacity of individuals being present at work meetings, being 30 persons at the time of writing. There are also other measures that an employer is free to follow if the same are recommended by health experts.

UAE

No, the UAE authorities have not published any regulations that differentiate between vaccinated and unvaccinated employees. The UAE authorities have confirmed that despite the fact that the vaccine is being administered (with over 80 per cent of the population having received the vaccine to date), this does not mean that protection measures fall away. Employers must therefore continue to ensure that they have taken all the necessary health and safety measures recommended by the authorities for the workplace and any specific measures required for the employee’s role (including the requirement to wear masks, social distancing, etc).

Under what circumstances can a vaccination be imposed as a condition of employment?

Bahrain

Currently, and given that the vaccination remains voluntary, there are no circumstances that would permit an employer to impose a vaccine as a condition of employment.

KSA

Vaccinations have been ‘indirectly’ imposed as they are mandatory for workplace access except for those exempt from vaccination. Unvaccinated non-exempt employees are currently directed to work from home unless the role cannot be done remotely. For roles that cannot be performed remotely, vaccinations may be imposed as a condition of employment. This is provided that initially the Saudi Ministry of Human Resources and Social Development guidance steps regarding the management of unvaccinated non-exempt employees have been followed, that is,. the use of annual and unpaid leave and any contract suspension with agreement.

Kuwait

Currently, and given that the vaccination remains voluntary, there are no circumstances that would permit an employer to impose a vaccine as a condition of employment.

Oman

Based on the Supreme Committee decisions, for existing employees, please refer to the response to the next question. For new employees, it is permissible for the employer to ask the employee to provide a copy of his or her vaccination certificate at the time of offering the employment.

Qatar

Currently, and given that the vaccination remains voluntary, there are no circumstances that would permit an employer to impose a vaccine as a condition of employment.

UAE

Currently, and given that the vaccination remains voluntary, there are no circumstances that would permit an employer to impose a vaccine as a condition of employment.

Can an employer dismiss an employee refusing vaccination?

Bahrain

No. An employer would need to be able to show that it has a valid reason to terminate an employee. This means that an employer needs to show that it is not possible for the employee to perform work without being vaccinated and there is no viable alternative role available with the employer. As it is currently not generally mandatory for citizens or residents in Bahrain to be vaccinated, the Labour Court is unlikely to accept that the employee’s refusal to receive the vaccine alone is sufficient to lawfully terminate an employee’s employment, and the court would likely want to see demonstrable evidence that the employee’s ability to perform work was significantly impacted.

KSA

Potentially yes, provided that the employee is not exempt, the Saudi Ministry of Human Resources and Social Development guidance referred to above has been followed, and local legal advice is obtained prior to implementing any such dismissals, in order to mitigate the risk of such a dismissal being unlawful.

Kuwait

Currently, Kuwait law does not prescribe actions that the employer may take with regard to vaccination refusal. As such, should an employer take action against the employee for refusing to receive the vaccine, then the employer would be doing so at the risk of a claim that the employee was being treated unfairly. For example, the employer could potentially terminate the employee’s contract after notifying the employee. However, since the law does not require mandatory vaccinations, the employee may argue that the termination was for an ‘unjust cause’ since there is no legal basis for not allowing the employee into the workplace.

Oman

The employee can only refuse receiving the vaccine if he or she has a valid health certificate indicating that he or she is exempt. If the employee refuses to receive the vaccine and does not have a valid health certificate, by law, the employee is not allowed to attend the work premises until he or she is vaccinated. The employer may require the employee to use annual leave or to work from home, if possible. Once all the annual days are used, a legal notice can be sent by the employer to reflect that the employee is not complying with the country’s requirements. Dismissal is not clearly permitted by law.

Qatar

No. However, an employee of an unlimited term contract can be dismissed on one or two months’ notice (depending on length of service) or in accordance with a longer notice period as indicated in the employment contract, without the necessity to provide any reasons for doing so.

UAE

No. Any such dismissal is likely to be considered arbitrary pursuant to which compensation may be awarded to an employee by a Labour Court in the event of a dispute.

Can an employer dismiss an employee who knowingly breaches Covid-19 regulations, comes to the workplace in breach of quarantine requirements or comes to the workplace when infected with Covid-19?​​​​​​​

Bahrain

Potentially. With reference to the Bahrain Labour Law, an employer can dismiss an employee without notice or compensation if that employee, despite a written warning, fails to comply with written instructions which are required for the safety of employees and the establishment. This is provided that such instructions are written and posted up in an apparent location at the workplace. In the event that the employer wishes to terminate the employee without the provision of a written warning, then it will need to demonstrate that it has a legitimate reason for terminating the employee, failing which the employer may be exposed to termination claims. It is then left to the court’s discretion to determine whether breaching Bahraini Covid-19 rules constitutes a legitimate reason for termination.

KSA

KSA law provides for summary dismissal in cases where employees fail to obey legal orders or intentionally fail to observe posted work and safety rules (having been made aware of such rules in writing). Dismissal with notice for similar misconduct breaches by an employee is possible, however, in both cases the usual components are required to help mitigate the risk of such dismissals being unlawful, for instance, clear rules regarding Covid-19 and the consequences of breaching those rules, evidence of employees’ awareness of these rules, clear evidence of breach and a fair and transparent disciplinary process.

Kuwait

Kuwait law does not explicitly provide for dismissal of an employee who knowingly breaches Covid-19 regulations. An employer could dismiss the employee for doing so since it would violate the Contagious Disease Law and place other employees at risk. Whether the dismissal would be considered arbitrary would be open to interpretation by the court in the event of a dispute.

Oman

Oman does not expressly give the employer the right to dismiss the employee who breaches the quarantine requirement. Breaching the quarantine requirement is a breach of the country’s rules and a fine may be imposed up to OMR 300.

Qatar

Article 61 of the Qatar Labour Law provides, inter alia, that an employee may be dismissed without notice and end of service benefits:

‘If the employee violates more than once the written instructions of the employer concerning the safety of employees and the workplace despite his being notified in writing of the violation provided that these instructions shall be written and posted up in a conspicuous place.’

Accordingly, if the employee were to commit such a breach more than once and the employee had received written notice concerning the first breach, the employee may be terminated.

Furthermore, pursuant to Article 61, if it could be proved that the employee knowingly or recklessly caused the spread of Covid-19 throughout the workplace and that caused the employer gross financial loss, then the employee could also be dismissed, provided that a report to the Labour Department was made within 24 hours of the incident occurring.

UAE

UAE law does not expressly provide for dismissal in such circumstances and, therefore, while an employer can proceed to terminate an employee’s employment for: (1) breaching UAE Covid-19 rules and regulations; and (2) putting at risk the health and safety of its employees, whether any such termination would be considered arbitrary (pursuant to which the employee would be entitled to compensation) would be determined by a Labour Court in the event of a dispute.

Conclusion

It is clear that, in light of the rollout of the Covid-19 vaccine, working life across the GCC is slowly starting to return to normal. As a result of employees returning to the office, it is important that employers continue to ensure that they remain compliant with their health and safety obligations towards their employees. Care should be taken to ensure the safety of employees, and employers should be mindful of this when implementing any return to work arrangements.