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Published 1 February 2021
If you are a Health and Social Care Professional please read this article.
As the COVID-19 vaccine is being rolled out across the country many employers are considering the question of mandatory vaccinations for their employees; employers are understandably keen that their employees are vaccinated in hope of returning to the workplace and some form of normality. In this article we consider some of the legal issues.
It should be noted from the outset that currently there is no UK legislation that the vaccine should be mandated nor has the UK Government suggested that it is likely to be made mandatory. It is also clear that vaccines will not be commercially available for some months and that younger members of the public who also do not fall into any of the vulnerable categories, will be the last to be offered a vaccine. That said, business should begin to discuss these issues now, so that vaccination can be included in risk assessments, and any potential points of conflict can be addressed.
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.
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.
Employers will need to consider vaccination as part of their risk assessment and should be encouraging employees to get vaccinated when available. However, when considering whether to introduce a mandatory vaccine policy employers should take a cautious approach considering all the matters above. Effective communication and engagement with staff and unions will be key in all scenarios, as will a well-structured process. Any concerns raised will need to be properly considered and conclusions documented. Employers should tread carefully if considering disciplining or dismissing employees for refusing vaccination and should also consider alternatives 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 the individual circumstances of your business including whether mandating vaccinations would be considered reasonable and how to implement such a policy.
+44 (0) 161 934 3179
+44 (0) 113 251 4717
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