COVID-19 Vaccine: Can employers require employees to be vaccinated? - Health and Social Care

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COVID-19 Vaccine: Can employers require employees to be vaccinated? - Health and Social Care

Published 2 February 2021

Health and social care workers are likely to welcome being vaccinated against COVID-19 given the risks posed to themselves, their colleagues and patients if the virus is contracted. However the question of mandatory vaccinations has been raised with us. This question is complex and the answer will depend to a certain extent on the employee’s role, place of work and individual circumstances. In this article we consider some of the legal issues.

Health and safety

  • All employers have a legal duty to take reasonable care for the safety of their employees and to reduce any workplace risks, however, healthcare professionals also have duty to ensure they are able to treat the public and to protect the health and safety of patients. It is therefore advisable to consider the vaccine when undertaking COVID-19 risk assessments, including the measures that might be taken where an employee decides not to get vaccinated.
  • To meet health and safety duties, it will be reasonable in most cases for employers to strongly encourage employees to be vaccinated to protect themselves and others in the workplace. However, whether employers should take the further step of mandating vaccination, as a health and safety requirement, is less clear. Scientists are currently investigating whether vaccination prevents a person from transmitting the virus to others, which is clearly a relevant factor.
  • Employers should also bear in mind that vaccination will also not offer total immunity. Employers cannot therefore rely on it as a control measure when planning for the future; they must also ensure other COVID-secure measures are in place.

 Can employers require employees to be vaccinated?

  • It is unlikely that there is an express contractual right or power for an employer to compel employees to have a vaccination. In the absence of such an express power, the starting point for mandatory COVID-19 vaccination is whether this would constitute a “reasonable management instruction”.
  • In looking at whether an instruction is “reasonable” the courts will consider and balance the rights of an employee against the reasons for the instruction by an employer. The most pertinent employee rights here will be their human rights and associated rights under the Equality Act not to be discriminated against on the basis of protected characteristics. As stated above, from the employer’s perspective, the reasons for giving a vaccination instruction are likely to be to protect the health and safety of the employee, their colleagues and, in some cases, to protect other people who are vulnerable and with whom the employee interacts.
  • The issue is nuanced and a ‘one-size-fits-all’ approach will not work. Whether an instruction to get the vaccine is lawful and reasonable will depend on whether the instruction is a proportionate step in any individual case. For example, it will be easier to justify mandating vaccination for front line staff for patient safety reasons.
  • If an employer is to look at a mandatory vaccination strategy, there would need to be a targeted approach with opt out arrangements in place and structured around a defined roll-out process.

Potential discrimination issues: 

Disability: Those who have been advised not to have the vaccine due to a medical condition may argue that their disability prevents them from accepting a vaccination. Severe cases of fear of needles may also constitute a disability.

Religion and belief: Employees relying on their religion to argue that not taking a vaccine is part of their religious belief ought to be protected. For example, Muslim employees may refuse the vaccination if they contain pork gelatine. Similarly if the vaccine contained any animal product, vegans and vegetarians could object on the grounds of respecting their private lives and beliefs. Those with anti-vax beliefs may also assert their belief is a protected characteristic. An employee taking such a stance would need to establish that their belief was genuinely held, cogent, serious and worthy of respect in a democratic society.

Pregnancy and maternity discrimination: Current Public Health England advice states that pregnant women should not routinely have the COVID-19 vaccine. Any requirement or encouragement to take a vaccine should therefore have an exception for pregnant women and this should be fully discussed with them.

Data Protection considerations:

Personal data which may be collected in connection with employee vaccination is likely to constitute special category personal data and will therefore need to be processed in line with GDPR and an impact assessment completed.

What does this mean for employers?

Employers will need to consider vaccination as part of their risk assessment and should be encouraging employees to get vaccinated. A considered approach should be taken to introducing a mandatory vaccine policy, taking into account all the matters above. Effective communication and engagement with staff will be key in all scenarios, as will a well-structured process. Any concerns raised will need to be properly considered and conclusions documented. However our view is that once the above considerations have been taken into account and in particular an employee’s individual concerns considered and addressed, it is possible to require that employees working in health and social care be vaccinated. The consequence of an on-going refusal by an employee would then become an act of misconduct and if it prevents the employee from undertaking their duties may also allow in some circumstances non-payment of salary to the employee.  

Employers should tread carefully if considering disciplining or dismissing employees for refusing vaccination (or deducting salary) and should also consider alternatives where possible, such as moving employees or altering their roles so they are not exposed to as much risk, nor expose others.

Our team are regularly advising in this area. Please contact us if you would like to discuss this issue in more detail including whether mandating vaccinations would be considered reasonable in your workplace and how to implement such a policy.

 

Authors

Joanne Bell

Joanne Bell

Manchester

+44 (0) 161 934 3179

Udara Ranasinghe

Udara Ranasinghe

London - Walbrook

+44 (0)20 7894 6727

Nick Chronias

Nick Chronias

London - Walbrook

+44 (0)20 7894 6701

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