Can My Employer Make Me Get A Covid-19 Vaccine?
Lauren Mills, Associate Solicitor, Employment
December saw the highly anticipated rollout of the Pfizer vaccination in the fight against the coronavirus pandemic. Since then, the Oxford vaccine has been rolled out, along with the Government’s vaccine delivery plan.
The Prime Minister has recently stated that every adult will be offered a vaccination by the end of July, which has left UK-based workers wondering whether they have to have the jab and whether their employer can require them to be immunised.
Some employers will be very keen for their staff to benefit from a Covid-19 vaccine. Having a full complement of vaccinated employees could mean a dramatic reduction in the risk of the virus and less concern for the employer when it comes to transmission in the workplace. Early signs show that it does reduce transmission but this has not yet been confirmed formally.
With the roll out of the vaccine we have subsequently seen a rise in the number of queries regarding the impact this potentially has on employment relations.
Making the vaccine compulsory is not without a number of risks. We have therefore set out some information below regarding the vaccine which we hope you will find helpful:-
• The government has not legislated for the vaccine to be mandatory, so on balance it would be risky for employers to insist on vaccination, even in workplaces where there is close contact with vulnerable people. Furthermore, the Health Minister, Edward Argar, warned employers that they cannot force their employees to get a vaccine before returning to work and that vaccinations have to remain voluntary as there are other ways in which businesses can make their workplaces COVID secure.
• The ACAS guidance (link below) advises that employers should support staff in getting the vaccine, without making it a requirement. However, it acknowledges that it may be necessary to make vaccination mandatory to be enable staff to carry out their work, for example where they travel overseas and need to be vaccinated or for those working in healthcare or care home settings - https://www.acas.org.uk/working-safely-coronavirus/getting-the-coronavirus-vaccine-for-work
• The Health and Safety at Work Act 1974 (HSWA) obliges employers to take reasonable steps to reduce any workplace risks, therefore it would be fair to say that employers should at the very least be encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace. This could be via informative leaflets / staff meetings and so on. By providing access to reliable information about the vaccine, employees will be in a position to make an informed choice. Allowing paid time off for vaccination may also encourage employees to attend appointments.
• Risk assessments. It is recommended that when the vaccine is rolled out more widely, employers update their risk assessments to reflect the availability of the vaccine. In view of the potential for individuals to refuse a vaccination, risk assessments may need to determine if additional measures can be put in place if an employee chooses not, or is unable, to be vaccinated.
• Any available vaccine may not be suitable for all. For example, some of the vaccines in production are not suitable for certain individuals with suppressed immune systems (but others may be suitable). In order to avoid arguments of disability discrimination (where an employee is unable to get the vaccine because of a health condition) or age discrimination (where it is not suitable or available for those of a certain age), any mandatory requirement would need to be couched in terms which allowed for exceptions.
• It is also possible that certain religious or moral objections to the vaccine could be protected under the protected characteristic of religious or philosophical belief. For example, gelatine derived from pigs is often used in mass produced vaccines. This may also be a concern for vegan or vegetarian employees.
• Contractual requirement to have a vaccine. Without any statutory obligation to make vaccination compulsory, employers who want to make the vaccination mandatory for their employees will need to look to other means, for example, by introducing a specific provision in the contract of employment. For those who can receive the vaccine, introducing a contractual requirement that they do so would amount to a change in terms and conditions. Any contractual change would need to satisfy the usual considerations where a change to contractual terms is proposed. We can envisage many employees objecting to such a requirement, either due to their concerns about the safety of the new vaccine (whether well-founded or not) or due to an opposition to being compelled by their employer to undertake what is effectively a minor medical procedure. Without agreement you would be faced with either unilateral imposition of the change, or terminating and offering re-engagement on the new terms. Both options carry significant risks, particularly when the change is so controversial, and taking account of potential human rights arguments and the discrimination issues.
• The existence of a contractual requirement to obtain the vaccine does not, necessarily, allow an employer to lawfully discipline or dismiss the employee if they fail to do so.
• Employers may want to seek to rely on the requirement to be vaccinated as a lawful and reasonable instruction. The question of what is reasonable will be fact sensitive for every workforce and workplace, and is likely to depend on the risk and implications of COVID-19 in the particular setting – the higher the risk a non-vaccinated person in the workplace presents to themselves and others, the more reasonable the requirement to have the vaccination becomes. What is ‘reasonable’ will also change over time, if, as expected, people’s initial concerns about the vaccine dissipate and having the vaccine becomes more commonplace. For the moment, the reasonableness of a requirement to be vaccinated is likely to be difficult to establish, in most circumstances, in light of it being a new and invasive medical procedure and when there are other, less invasive, ways to minimise the risk of transmission in the workplace.
Overall, requiring an employee to be vaccinated will present employers with a number of employment law challenges regardless of whether the employer relies on a specific contractual obligation as their chosen route or on it being a ’reasonable instruction’. These challenges include potential discrimination issues (most notably, on the grounds of disability, age, and/or religion/belief) and potential breaches by the employer of its duty of implied trust and confidence which could result in claims for constructive unfair dismissal. There is also a human rights argument linked to an employee’s right to respect for their private life.
With this in mind, what an employer decides to do in respect of the vaccination will largely depend on workplace-specific considerations and the approach an employer can take may change over time as having the vaccine becomes more routine and people’s concerns over the vaccine diminish.
What steps can employers take now?
Whilst the vaccine programme continues to be rolled out and completion remains a way off, there are a number of steps employers can take now to prepare for the wider rollout:
- Audit your workforce
Identify which roles can continue to be performed effectively from home, which roles can continue to safely be performed with existing Covid-secure arrangements in place and whether there are any roles which may reasonably justify an employee having to have a vaccination in order to perform them. Consider how you will manage an employee whose role requires them to be vaccinated but who refuses to do so, remembering that cases will still need to be reviewed on an individual basis
- Put in place an internal communications strategy
Provide clear information to employees on the vaccine programme as this may help encourage participation and will support any employees who may have doubts about the vaccination or may otherwise be unable to have it. Be prepared for individuals to have concerns about the vaccine, especially in these early phases of the rollout. Employees should be signposted to sources of further information and support, both internal and external.
- Maintain safety measures that are already in place
The vaccination will not be available to all employees for a significant period of time and in any case, should continue to be used alongside Covid-secure practices for the time being.
- Consider what approach to working practices will be put in place
Employers should assess what will happen on the rollout of the vaccine in respect of their workforce and working arrangements. This will include consideration of issues such as anticipated timescales, working requirements at different stages of the programme, differences across group companies (including in different jurisdictions), unvaccinated employees, and legal and other risks. This planning may include undertaking a new risk assessment, and updating any currently in place. Employers should also ensure that all relevant stakeholders are involved including, if relevant, trade unions.
- Consider your approach to third parties
Identify what approach you will take to visitors to your premises – will you require them provide evidence that they have been vaccinated before allowing them to enter your premises? Make sure your approach to visitors does not undermine your approach for employees.
- Facilitate employees being vaccinated
Consider whether your day-to-day operations are likely to be disrupted by the vaccine rollout. For example, employees may need to take time off work to get the vaccine and to recover from any side-effects. The vaccine is not currently available privately, but if at some stage it is, employers may want to consider whether they would pay for employees to be vaccinated.
- Consider how medical records will be managed
Data protection policies and processes should be reviewed to ensure that they are fit for purpose.
- Keep up-to-date on developments
The vaccination programme and its impact will continue to evolve over the course of the next few months. Employers will need to be prepared to adapt their plans and approach in line with new developments.
Finally, we would encourage any employer to seek legal advice in respect of the options available. Employers should be mindful that in these early stages of the vaccine, individuals are likely to have more concerns about it and these should be addressed with sensitivity and in a careful manner.