Can Employers Insist on Employees Having the Covid-19 Vaccine?

from Silk Helix
Photograph of Jenefer Livings, Founder of Silk Helix Ltd
21 December 2020
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With news of a covid-19 vaccine being rolled out in the UK, employers may be looking to the future and hoping their employees will all vaccinate themselves. But, can they force employees to have the vaccine?

At the time of writing, there are no plans by the government to make vaccination a legal requirement. There is no precedent for legally requiring vaccines in the UK. With the exception of some care roles there is no precedent of employers or even schools requiring vaccination.

Objective Justification

Employers don’t normally have a right to impact on individual personal lives and medical decisions. Taking the decision now to insist on vaccination would be a significant step into personal decision making. Any blanket rule requiring employees to be vaccinated must therefore have objective justification as to why employees must be vaccinated.

With the possible exception of those in direct care roles, it is difficult to find objective justification employers could have. Even asking employees if they have had the vaccination requires justification to hold such data. At present there is not enough evidence of the vaccination being effective enough to allow employers to make decisions based on the fact an individual has been vaccinated. Therefore it would be difficult to argue there is a valid reason for employers to hold data regarding vaccination status.

Employers who plan to insist on vaccination must consider their plans if someone does not vaccinate. They will still need to work with the individual and understand their individual reasons for not having the vaccination. Any dismissal as a result of not having the vaccination must follow a fair procedure, which would include having consulted over the policy and an objective business reason for such a policy.

Even in the care industry individual circumstances and their job role should be taken into account, the nature of care provided and to who may impact the decision as to whether vaccination is a requirement of the job.

Assessing the Risk

At the time of writing there is no plan to change advice around handwashing, masks, PPE and social distancing even for those who have received the vaccination. Whilst the vaccinations have been proven to be effective, there is currently no evidence as to whether a vaccinated person can still carry and transmit the virus even if they don’t contract the virus themselves.

Insisting employees have the vaccine is intrusive in a way that wearing masks and PPE is not. Employers must ask themselves whether there are less intrusive ways of protecting employees and the public. Current advice is that following rules around distancing, PPE and handwashing are the best ways to reduce the spread and therefore these are the actions employers should be focusing on.

It will be difficult for employers to argue that vaccination is required to keep employees and the public safe.

Insisting on vaccination may have a negative impact on culture in the workplace. Culturally in the UK we don’t like having personal choice removed. An employer who insists on vaccinations may find even employees who want the vaccination don’t like the option being taken away from them. This could have a negative impact on culture and motivation in the workplace.

Education

Whilst employers may be hard pushed to objectively justify the need to insist on vaccinations, educating employees and encouraging vaccination is appropriate.

Respectful education that shares government information about the vaccination and helps to dispel myths (particularly if anti-vaccination messages are circulating in the workplace) is particularly useful. Employers may want to go further as part of their wellbeing strategy and both recommend and pay for the vaccine, as many employers already do with the annual flu vaccine.

Rolling out a vaccination on a national scale like is required of the covid-19 vaccine may make it difficult to get appointments outside of work time. Employers may find it encourages take up of the vaccine to allow paid time off for appointments.

Duty of Care

Employers must remember they have a duty of care to all employees. Employers may find themselves having to deal with anti-vaxx views in the workplace, which will mean respectfully sharing scientific information. Ensure information is always shared respectfully and investigate instances of bullying.

Once the vaccine is covering the majority of the population we may reach a point where individuals refuse to work with people who have not been vaccinated. At the time of writing there is no legal argument to justify not wanting to work with someone who isn’t vaccinated. However, ensuring workplace covid safety remains important. Acting inline with government advice at the time will help to reduce the risk of individuals becoming over reliant on only being around those who have been vaccinated.

The Practical Challenges

Insisting on vaccination requires a situation where your people can all access the vaccination. The government has a mammoth task of attempting to vaccinate the entire adult population and not just our government but governments across the world. This requires an unprecedented supply of both vaccines and people to administer it. The reality is that a huge proportion of the working population are very low on the priority list for the vaccine.

It is therefore some months before employers will even be in a position to consider insisting on the vaccination. The exception being those on the front line providing care who are first in line for vaccines. Given they are first in line, this further reinforces the potential view that requiring vaccination could be objectively justified in some circumstances.

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Article last updated: 21 December 2020

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