Given the good news this week that the Oxford-AstraZeneca vaccine may reduce the spread of coronavirus and the fact that one in five adults have had their first COVID-19 vaccination, many employers will be considering how to approach the issue of vaccines with their workforce. But can employers simply make vaccinations mandatory for staff? Can employers monitor who has had a vaccination? We set out below some key questions and answers on this topic.
Some high profile employers have already announced that they are going to insist that all staff have a vaccine before they are allowed to enter the workplace. For example, Charlie Mullins, founder and CEO of Pimlico Plumbers, has said that his business will introduce a "no jab, no job" policy.
There are a number of reasons why an employer might wish to introduce a mandatory vaccination policy:
- If staff are less at risk of suffering significantly from coronavirus themselves, this is a positive fact in itself.
- If transmission is reduced this has obvious health and safety benefits.
- It may assist with employee attendance rates and thereby promote business continuity.
- It may allow the employer to give comfort to other employees and also to clients and customers visiting offices or premises.
- It may assist employers who need staff to travel abroad.
- It could also lead, over time, to lower insurance premiums for both workplace insurance, travel insurance and health insurance.
Can we require all of our employees to be vaccinated against COVID-19?
No, generally not. Employers cannot force employees to have a COVID-19 vaccination. Employers are responsible for ensuring the health and safety of their employees, as far as reasonably practicable. However, this would not justify insisting upon employees having vaccinations in most cases. Being vaccinated requires consent and at present there is no legislation that can force an individual to be vaccinated. In fact, the Public Health (Control of Disease) Act 1984 specifically states that the public should not be compelled to undergo any mandatory medical treatment, including vaccinations. The government has confirmed that the COVID-19 vaccine will not be mandatory, even for frontline workers.
In light of the above, and because there are many less intrusive methods that employers can deploy to keep their business running and to keep their employees as safe as reasonably possible, it is unlikely that a mandatory policy of vaccination would be a reasonable or lawful instruction to give to all staff. If employees were disciplined or dismissed for a failure to comply with such an instruction, their employer would risk unfair dismissal and/or discrimination claims (see more below).
There may be some sectors and/or staff who work in situations where a vaccine is more necessary, such as in the care sector. An instruction to have a vaccine in such circumstances may be much more justifiable than it would be for office workers. Therefore the reason for the requirement needs to be considered carefully on a case by case basis. A flexible and nuanced approach will reduce the risk of employment claims.
Along with the legal risks, having a blanket policy raises practical problems. It is currently unclear when certain parts of the workforce will be able to access COVID-19 vaccinations. There are also some people who are advised not to have the COVID-19 vaccination (e.g. pregnant women). It may not be practicable to insist on your whole workforce having the vaccination for some time, if ever.
Can we prevent our employees returning to the workplace until they have been vaccinated?
Yes, in some cases a less draconian approach than a blanket policy of vaccinations may be to say that employees must continue to work from home until they are vaccinated. This is a possible option where employees can effectively work from home and the period is finite. If, however, employees cannot work from home, and the employer asks them to remain at home, they will need to consider paying employees full pay. It will carry significant risk to ask them to take unpaid leave for anything other than a very short period.
Again, this approach does create legal risk and practical difficulties given the uncertain length of time before vaccinations are available to all (particularly younger staff) and the inherent discrimination risks.
What discrimination risks do we face if we take a firm line on staff having vaccinations?
It is likely that at least some of the workforce will be unable or unwilling to have the vaccine. In particular:
- The government’s current advice is that pregnant women should not routinely be vaccinated. The advice to breastfeeding mothers and those planning to get pregnant is that they may wish to wait to get their vaccinations until after their pregnancy or until they have finished breastfeeding.
- Those with a known history of reacting to any specific ingredients of the COVID-19 vaccines have also been advised not to have it.
- More generally, the government’s order of priority for vaccinating means that much of the younger population will not be eligible to have the vaccine for some time, due to their age.
Aside from those advised not to have the vaccine, there are also numerous reasons why an individual may not want to be vaccinated, including religious reasons or a "belief" that the vaccine exposes them to risk.
Depending on the facts and circumstances, all of these reasons for not being vaccinated may constitute "protected characteristics" under the Equality Act 2010 (pregnancy, disability, religion and age). It is possible that an “anti-vaccination” belief may merit legal protection as a philosophical belief in the UK, although this has not been tested.
If employees are subjected to any detriment or less favourable treatment in the workplace due to their inability or unwillingness to be vaccinated, this could lead to the employer facing claims of unlawful discrimination. Dismissal, disciplinary action, detrimental role changes, refusal to allow employees to return to the office or the imposition of unpaid leave could all constitute discrimination.
A blanket policy requiring vaccinations would not constitute direct discrimination, but could be indirectly discriminatory against those who hold protected characteristics. This means that employers would need to justify this policy as a proportionate means of achieving a legitimate aim. The aims set out at the top of this article (such as ensuring the health and safety of the workforce and maximising the number of employees who can attend the workplace) could be deemed to be "legitimate" aims. However, a Tribunal would then consider if those aims were proportionate. This would include an analysis of whether there are less discriminatory means of achieving the same aim. There are likely to be other less intrusive methods of achieving these aims, for example, continuing a working from home approach. It may be difficult to demonstrate that a blanket policy, which applies irrespective of role and risk, is proportionate.
Employers are under a duty to make reasonable adjustments for disadvantaged disabled employees. This duty could potentially cover disapplication of a mandatory vaccine policy for a certain employee or changing a role to strip out parts which make the vaccine a requirement e.g. a global travel requirement.
Is there a personal injury angle?
Yes. All vaccines risk side effects. If an employee suffered side effects as a result of the vaccine that their employer had insisted upon, that employee may have grounds to bring a personal injury claim against the employer.
Can we legitimately encourage employees to have the vaccine?
Yes.
Where an organisation or a particular role does not objectively justify the need to insist on vaccination, employers may do better to actively encourage their workforce to have the vaccine when it becomes available to them. This could be done by talking to staff about the vaccine, sharing the benefits of getting vaccinated and offering paid time off to attend a vaccination appointment.
The ACAS guidance on working safely during coronavirus says that employers should support staff in getting the vaccine but cannot force them to be vaccinated.
Do we need to consult staff about our proposals with regard to vaccines?
Yes, if measures are being introduced.
Employers must consult on matters relating to the health and safety of employees. In particular, consultation is required in relation to the introduction of any measures at the workplace which may substantially affect the health and safety of the employees. Therefore, introducing any rules on vaccinations will necessitate employee consultation.
The employer’s health and safety policy may specify how the employer will engage with employees, so this should be considered first. Consultation may be required with trade union appointed health and safety representatives, employee representatives elected by the employees, the employees themselves, or with a combination of these, depending on the circumstances.
Can we gather evidence of and keep a record of employees who have been vaccinated?
Yes, potentially you can do so but we recommend that giving this information is voluntary in most cases. Employers must comply with their data protection obligations in relation to the data collected and should be aware that simply asking the question increases the risk of discrimination claims.
In order to justify evidence gathering, employers must first establish a clear rationale for doing so. Perhaps this may be where it is required for travel reasons, or for safety reasons where staff are interacting with vulnerable people. It may be where an employer is insisting employees have the vaccination before returning to the office.
Merely asking the question “have you been vaccinated?” increases the risk of discrimination claims. Employees may disclose personal information when answering this question to explain why they have not been vaccinated. Once in receipt of this new information, the employer may be under a duty to take action, such as making reasonable adjustments in respect of a previously unknown disability. Consequently, an employee could claim that any subsequent action taken by their employer was due to the information disclosed. For example, an employee selected for redundancy after telling her employer that she is in the early stages of pregnancy may claim her selection was due to her impending maternity.
It is unlawful to ask potential recruits about their health prior to offering them a role, other than for prescribed reasons. In many cases, questioning an individual’s vaccination status during recruitment would be unlawful. It is also likely to result in disclosure of other personal information, which exposes the would-be employer to potential discrimination claims if the individual is not recruited.
Gathering and holding data on vaccinations has data protection consequences. Data about whether someone has had the vaccination constitutes special category personal data (previously known as sensitive personal data) under the data protection legislation. Employers should firstly undertake a data protection impact assessment in order to consider how to minimise the data protection risks of holding this kind of employee personal data. Employers will need to identify appropriate lawful bases for processing such data. In addition, employers need to ensure appropriate policy documents and additional safeguards are in place to make sure the data is processed in a fair, lawful and transparent manner. Privacy notices, and records of processing will need to be updated to take account of this data. Storage and retention arrangements will also need to be reviewed to take into account the particularly sensitive nature of the data that employers may receive when they ask employees about vaccinations.
Does the advent of the vaccination mean that we can remove COVID-secure measures in the workplace?
No. For the time being employers will need to continue to follow the government’s industry specific COVID-secure workplace guidance until it is withdrawn. It is unlikely that all staff will have the vaccine and even if they do, vaccines are not 100% effective. Although there is some evidence that the AstraZeneca vaccine reduces the rate of spread of the virus, it is still unclear how the other vaccines will affect transmission rates. Employers should therefore maintain COVID-secure measures, such as screens, social distancing and large-scale working from home where possible.
With third parties, contractors, customers and suppliers coming on site, the COVID-secure measures will be as important as ever.
Kerry Garcia
Frances Rollin