With the ongoing success of the vaccine roll out, all adults have now been offered the chance to be vaccinated. Booster vaccinations are also available to those over 50, at a higher risk of getting seriously ill from COVID-19 and frontline health and social care workers. Now that the vaccine is also being offered to 16- & 17-year-olds as well, this means the majority of the work force are able to have the vaccine.
Whilst vaccinations may be seen as a ‘way out’ of the Coronavirus pandemic, some employers will now see it as a ‘way in’ to reopening office spaces with reduced risks of their staff becoming absent due to COVID-19.
Employers hoping for a return to the workplace will need to consider the legal requirements and must comply with their health and safety obligations.
It has been reported this year that some employers are introducing mandatory vaccination policies, requiring all of their workers to be vaccinated against COVID-19. Employers should be careful of a blanket approach to vaccinations as this could bring about a number of legal complications. They will need to consider this carefully to avoid any discrimination or other employment law issues.
So, should an employer have a mandatory vaccination scheme?
Regardless if an employer can make it a requirement to be vaccinated, it must be considered as to what a reasonable instruction is. Whilst a request to be vaccinated may be considered reasonable for certain sectors such as the health and social care sector, a request may not be reasonable or legal in others.
Whether such a request would be a reasonable instruction should be judged case by case. Failure to follow reasonable instructions could justify disciplinary action being taken by your employer, although employers should be very cautious with any form of disciplinary action or dismissal arising from a refusal to receive a vaccine.
An employer considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should consider the following:
- The Vaccination is not suitable for all employees or applicants;
- Requiring an employee to be vaccinated without their consent as a condition to providing work could lead to Employment Tribunal claims;
- A mandatory vaccination requirement and only allowing vaccinated employees to return once vaccinated could create issues surrounding discrimination and human rights issues;
- Employees or applicants must wait their turn, in order of priority, to be offered vaccination;
- It may be difficult to justify a mandatory vaccination requirement on health and safety grounds;
- Imposing a mandatory vacation requirement could result in negative publicity for the employer resulting in a detrimental impact on business profitability and employee retention;
- There is a very small risk that vaccination could have long-term, adverse side effects for some individuals, which may concern a cautious employer. This may lead to personal injury claims; and
- The data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy and retaining that data.
In view of the risks of a mandatory vaccination programme, it is advisable for employers to consider:
- How best to achieve voluntary vaccination within their workforce
- What other alternative measures they could introduce to reduce the risk of COVID-19 in the workplace.
Collective consultation with employee or trade union representatives in addition to a sensitive internal communications plan, may contribute towards voluntary take-up of the vaccine.
The topic of mandatory vaccinations is expected to develop substantially over the coming months and we may see further guidance and advice from the Government. It is likely that many COVID-19 related claims will soon be before the Employment Tribunal which may give some much-needed legal guidance on this and other COVID-19 related issues.
However, at this stage employers should be aware of the potential issues related to mandatory employee vaccinations and should consider communicating with employees directly. Employers may also consider putting in place COVID-19 policies and procedures for a safe return to the office, including a Vaccination Policy.
Any employers considering an approach of mandatory vaccination or putting in place a Vaccination Policy should obtain legal advice before taking any steps.
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Employment & Litigation Solicitor
This blog does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.