Vaccination is voluntary, but mandatory

Taking into account the epidemiological situation, several regions (Moscow city, Moscow Region, Leningrad Region, Krasnodar Territory and some other regions) at once have introduced mandatory vaccination for employees in a number of industries.

We have answered the most frequently asked questions of employers concerning mandatory vaccination, using Moscow as an example. Our answers, among other things, are based on clarifications of the Crisis Centre of Moscow and Moscow Office of Rospotrebnadzor (the Russian Federal Service for Surveillance on Consumer Rights Protection and Human Wellbeing), and on information from the website of the Moscow Mayor.

1. What companies are subject to mandatory vaccination in Moscow?

The industries subject to mandatory vaccination are specified in Resolution No. 1 of the Chief Public Health Officer for the city of Moscow dated 15 June 2021. We will list them all:

• retail;
• beauty salons, skin care shops, day spa, massage salons, solaria, baths, saunas, sports and recreation centres, fitness clubs, swimming pools;
• domestic services, including laundries, dry cleaners and other similar services;
• public catering;
• client divisions of financial institutions, companies supplying postal services;
• multifunctional centres for the provision of state and municipal services;
• public transport and taxis;
• education, healthcare, social protection and social services;
• housing and utilities, and energy;
• cultural, exhibition, and educational events (including by museums, exhibition halls, or libraries, as well as lectures, and training events), except for official events organised by executive bodies;
• leisure, recreation, and entertainment events (including games, workshops);
• children's playrooms, children's recreation centres, children's day camps, and other places where such events for minors are held in buildings, structures, or facilities (premises located in them), including in parks of culture and rest, and retail and recreation centres;
• theatres, cinemas, and concert halls;
• mass athletic and sport events;
• delivery of goods and food products, including courier services.

2. How do we understand whether our company is subject to mandatory vaccination or not?

Companies should report the fulfilling of the requirement for mandatory vaccination using the form established by Order No. 32-UM of the Mayor of Moscow dated 16 June 2021. This form provides that codes from the OKVED (All-Russian Classifier of Types of Economic Activity) should be specified for the principal (section 6 of the information) and auxiliary (section 7 of the information) types of activity. It is logical to suggest that in order to determine the areas of business activity that are subject to mandatory vaccination, the state authorities will use OKVED codes.

It follows from the clarifications published by the Crisis Centre of Moscow that the requirement for the mandatory vaccination of employees applies to a company whose principal line of business (section 6 of the information) is included in the list of industries whose employees are subject to mandatory vaccination, with such line of business being the principal one. In other words, according to these clarifications, a company’s auxiliary types of activity should not be taken into account.

Meanwhile, if the descriptions of OKVED codes with regard to auxiliary types of business activities (such as trade, both wholesale and retail) include the words set out in the resolution of the Chief Public Health Officer for Moscow, and the company carries out such auxiliary business activity alongside its principal business (e.g. the principal type of activity is production, while the auxiliary type of activity is trade), it will be safer, in our view, to regard the mandatory vaccination as applying to this company as well.

3. How to determine the staff headcount subject to mandatory vaccination?

Companies subject to mandatory vaccination must vaccinate at least 60% of the staff and service providers under civil law contracts. If a company has regional divisions, then for the purposes of staff headcount it should take into account only employees working in Moscow.

It is worth noting that, as the Crisis Centre of Moscow and Moscow Office of Rospotrebnadzor have explained, they have chosen industries which in their activity have a high level of epidemiological contacts and participate in the chain of transmitting viruses. But not only are employees who have direct contact with consumers (sales assistants, taxi drivers, trainers, massage therapists, etc.) subject to mandatory vaccination; in general, so are at least 60% of the total number of all employees and service providers under civil law contracts, with this also including those who do not have contact with clients in their work. In calculating the headcount, employees who are working remotely and those who are absent for any reason are taken into account.

4. What deadlines are set for vaccination?

Before 15 July 2021 employers must organise the vaccination of at least 60% of employees with the first component of the vaccine against the coronavirus, and before 15 August 2021 with the second component of the vaccine against the coronavirus.

5. Must a company provide a report on vaccination?

Yes. The form for filing the information is established by Order No. 32-UM of the Mayor of Moscow dated 16 June 2021.

The information must be filed once in the period from 1 until 15 July 2021. The service for filing information through the mos.ru website operates starting from 1 July 2021. The information must be filed in Excel format.

The information concerning vaccinated employees can be filed through the section ‘Services for Business’ - tab ‘Popular’ and ‘Organisation of business’. Also, it is possible to file information through the company’s profile on the mos.ru website.

The information must be signed with a qualified electronic signature. Also the information can be filed by the company’s authorised person who has full access to the company’s profile on the mos.ru website.

In order to file information through its profile the company should have an activated user account on mos.ru. If you do not have one, you should prepare in advance, since the activation of the user account may take time.

6. How will the information filed be checked? What liability is stipulated for a failure to vaccinate at least 60%? Maybe it is better to file nothing?

According to the clarification of the Crisis Centre of Moscow the information filed by employees will be checked completely and automatically. The information about vaccinated employees will be compared with the information from the unified medical information analysis system and with the state information system of the Russian Ministry of Healthcare (the Unified Country Register of Vaccinated Persons). We cannot exclude technical problems in which there may be a delay in adding information about vaccinated persons to the system or such information may be lost. In this case, employers are recommended to keep a record of vaccinated persons and to take copies of vaccination certificates from employees. Individuals can download such certificates from the gosuslugi.ru website, though these certificates may also appear there with a delay.

Information about companies which report a failure to reach 60% of vaccinated persons will be immediately transferred to the Moscow Office of Rospotrebnadzor. It in turn will send materials to the court and will ask for sanctions to be applied in the form of an administrative suspension of activities for up to 90 days (under articles 6.3(2) and 6.3(3) of the Russian Code of Administrative Offences). The same sanction is promised to be applied to companies that do not report vaccinations before 15 July 2021.

The possible alternative to a suspension of activities can be a fine up to RUB 500,000 for a company and up to RUB 150,000 for an officer, and if the violation of the requirement for mandatory vaccination resulted in harm to human health being caused or in death, the fine is up to RUB 1 million for the company and up to RUB 500,000 or disqualification for a term from one to three years for an officer.

7. But the vaccination is voluntary, isn’t it? How to convince employees to vaccinate themselves?

Yes, vaccination is a medical treatment which is performed provided that an informed voluntary consent of an individual is received (article 20(1) of Federal Law No. 323-FZ “On the fundamentals of protecting the health of the citizens of the Russian Federation” dated 21 November 2011).

But the wording of Resolution No. 1 of the Chief Public Health Officer for Moscow dated 15 June 2021 “to organise vaccination of at least 60% of the total number of employees” does not suggest the nature of a recommendation for employers.

Employees need to be convinced to vaccinate themselves. The same is stated in the specified Resolution of the Chief Public Health Officer for Moscow, which requires companies to strengthen public awareness work among employees concerning the prevention of the new coronavirus infection (COVID-19) by paying specific attention to the need for the administration of vaccines.

We recommend that companies should take all possible measures to convince their employees to vaccinate themselves. This can be one more newsletter regarding the need and benefit (against signature, via email, on an information stand), organising consultations with doctors, incentive measures, etc. This is needed not only to convince employees to vaccinate themselves, but also to prepare evidence that the company has made every reasonable effort to fulfil the vaccination requirement, but could not perform it owing to reasons beyond its control (since in the end the decision about vaccination is made by an employee).

Propose to those who ‘refuse’ to vaccinate themselves that they should write an official refusal to vaccinate in a medical institution (clinic) or a statement that they have contraindications to vaccination and bring such statement to the employer. If the employee refuses to write an official refusal to vaccinate, record such refusal by a certificate in a form of your own choosing.

The more effort the company makes to inform / convince / encourage employees concerning the need to vaccinate themselves and to record refusals, the greater the chances that in court it will manage to challenge sanctions if liability is imposed for a failure to reach the threshold of 60% of vaccinated employees.

The Crisis Centre of Moscow and Moscow Office of Rospotrebnadzor say that the employer is obliged to suspend from work those employees who have refused to vaccinate themselves (if they have no contraindications to vaccination) without paying salary or to transfer such employees to remote work. In our opinion, the position of the Crisis Centre of Moscow and Moscow Office of Rospotrebnadzor does not have full legal justification.

If an employee is not engaged in work connected with a high risk of contagious diseases and requiring mandatory vaccination (see Resolution No. 825 of the Russian Government dated 15 July 1999), then the suspension of such an employee from work owing to his/her refusal to vaccinate himself/herself can be treated as unjustified.

Moreover, suspended and ‘remote’ employees do not reduce the 60% quota of employees subject to vaccination, without mentioning that the company may be interested in having these employees continue to work if the company has an insufficient work force. For this reason suspension from work is better used only as a ‘threat’ for employees who refuse to vaccinate themselves, but this instrument should be applied carefully, understanding the possible risks for the company if employees have recourse to the court.

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