Whether to make vaccinations mandatory at work is a legal minefield and much thought and planning needs to go into any decision on the subject, says Lucie Mitchell.
The rapid roll-out of the coronavirus vaccine in the UK is, of course, to be applauded, but at the same time many employers are confused about what is required of them as they endeavour to ensure workplaces are safe for all employees upon their return.
Encouragingly, confidence in the vaccine appears to be rising, both in the UK and around the world. A report in February by Imperial College London’s Institute of Global Health Innovation revealed that 78% of people in the UK were willing to be vaccinated, compared to just 41% in November. And across all 15 countries surveyed, 54% would take the vaccine – up from 41% in November.
Yet despite growing trust in the vaccine, employers are now presented with a minefield of issues to consider as they turn their attention to getting employees back into the office.
“Employers are now in uncharted territory; and contracting with employees based on their medical history may have far-reaching consequences,” warns Tony Prevost, HR director EMEA at Skillsoft. “The number one priority for HR teams is making sure that the working environment is safe for everyone.”
Implementing an effective vaccination policy in the workplace is therefore important but requires careful planning. “Consulting with staff associations or unions before implementing any policy is key, as is considering how the employer intends to communicate with their staff about the introduction of a policy,” comments Charlotte Geesin, head of employment law at Howarths.
Another issue to consider is data protection and privacy. “A vaccination policy should explain how information on vaccinations will be used, how long employee vaccination data will be retained for, what decisions will be made based on the data held and confirm that any data held will be kept confidential,” she advises.
Other factors to think about include whether employees will be given paid time off to attend vaccination appointments; and whether there are specific working environments in which the employer will require vaccinations, such as care homes – and if a vaccine could become a mandatory part of the job.
“It is likely that, for some professions, vaccination could be made mandatory, for example, where an employee is required to travel overseas for work and it is a condition that an individual is vaccinated,” remarks Natasha Letchford, employment solicitor at Wilsons Solicitors. “It may also be considered mandatory in roles where the employee is in close contact with vulnerable people, such as health workers. Before deciding whether vaccination could be mandatory in the workplace, employers must carefully consider whether it is reasonably necessary to impose such a requirement and ensure that such a decision can be objectively justified.”
Some employers are already considering making it compulsory for new hires to be vaccinated – a so-called ‘no jab, no job’ policy. However, employers do need to think carefully before introducing such a clause.
“Until the vaccination programme has been rolled out further, a clause like this is likely to cause practical difficulties, as many job candidates may not yet have been offered the opportunity to be vaccinated,” comments Geesin. “A ‘no jab, no job’ clause is also likely to cause delays in the recruitment process and potentially discourage suitable applicants from applying. Employers should also keep in mind that job applicants are protected against discrimination in the same way as employees.”
As older employees will most likely be the first to be vaccinated, employers will also need to think about avoiding any conflict in the workplace between vaccinated and unvaccinated staff.
Thought therefore needs to be given to how a vaccination policy will reduce the risk of this, says Geesin.
“Plus, to avoid age discrimination risks and potential breach of contract claims, employers should ensure that any policies they implement in respect of vaccines should not include any difference in treatment on the grounds of age,” she adds.
In relation to this, employers also need to be careful that vaccinated workers are not advantaged over others. “It’s important that vaccination isn’t used by employers to give preferential treatment to employees, or indeed treat others less favourably if they have not had the vaccine or have reasonable grounds to refuse to be vaccinated,” says Jack Khurana, partner – employment law and dispute resolution at Spencer West. “Refusing the vaccine is unlikely to be classed as a refusal to follow a reasonable management instruction, so employers should take care when managing such cases to limit the risk of claims for discrimination or unfair and constructive dismissal.”
Prevost admits employers may find themselves in a predicament if an employee refuses, or is unable, to have the vaccine, yet it is currently unlawful to take action against employees who refuse. “The best thing to do is encourage and inform employees about the vaccination process,” he advises.