IS A MANDATORY CORINAVIRUS VACCINE POLICY LEGAL?
Is A Mandatory Coronavirus Vaccine Policy Legal? Now the roll out of the Coronavirus vaccine has started across the UK the idea that some sense of normality could return to the workplace in the near future has started to become a realistic vision and the hot top of conversation across the Country was suddenly ‘to be or not to be vaccinated’.
The Department of Health and Social Care are asking employers in the health and care sectors to begin booking staff in to be vaccinated against the virus. Whereas Charlie Mullins, the owner of Pimlico Plumbers in London, has been reported in the press as saying that moving forward he will only be offering jobs to people who can prove they have had the vaccine.
Early reports in the press indicate that even in the health and care sector there is a large percentage of employees who are reluctant to agree to be vaccinated.
This post explores some of the employment law issues which you will need to be aware of if you are hoping your employees will take up the offer of a vaccine or if like Pimlico Plumbers are considering enforcing a mandatory vaccine policy.
TOP 10 EMPLOYMENT LAW ISSUES
- Can We Insist Existing Employees Have The Vaccine?
The Government has confirmed that it will not embark on mandatory vaccination for UK residents and it will be a personal matter for people to decide. So, there is no legal right to require employees to have the vaccine.
When asked about mandatory vaccination the Prime Minister said: “I strongly urge people to take up the vaccine, but it is no part of our culture or our ambition in this country to make vaccines mandatory. That’s not how we do things.”.
The Public Health (Control of Disease) Act 1984 states that individuals cannot be forced to undergo medical treatment, which includes vaccination, but rather gives magistrates the power to prevent the spread of the disease in other ways such as self-isolation.
According to Government guidance Getting The Coronavirus Vaccine For Work, employers should support staff in having the Coronavirus vaccine, but cannot force staff to be vaccinated.
The Government is determining the order in which people will be able to get vaccinated and the initial priority, with the exception of frontline health and social care workers, are all of an age that they are mostly out of the active labour market. The second phase of the vaccination programme began on Monday 15 February 2021 and that extended the vaccine to those over 60 years of age.
There is also no evidence yet as to how frequently the vaccine will need to be repeated, i.e. will the one vaccination provide lifetime cover or will an annual vaccination like for fly be required. A further complication comes in the form of the variants, the Government have advised that the existing vaccines provide the same protection in the case of the UK and South African variants as they do to the original strain, however that may not be the case for future variants.
If you were found to be forcibly vaccinating your employees, you are likely to be committing the offences of criminal assault and battery and that would most likely be a repudiatory breach of contract. It is unlikely therefore that any mandatory vaccination programme put in place would be considered to be reasonable. Although there is no case law, dismissing an employee because they do not want the vaccine would likely be considered unfair dismissal as it is unusual for an employer to force employees to undergo a medical procedure.
In some sectors where Coronavirus presents an increased risk of outbreaks, morbidity and mortality it is conceivable that the employer may be able to argue that asking employees to take the vaccine is a reasonable management request; therefore, giving rise to disciplinary action on refusal. However, that course of action is likely to lead to a breakdown in the employer/employee relationship by requiring the employee to do something which is not reasonable and could ultimately lead to claims of a breach of trust and confidence and constructive dismissal.
The type of roles where a mandatory policy might be a reasonable management request include healthcare, or another type of job involving vulnerable clients or patients. That could also be extended to personal care roles which involve close contact, such as hairdressing, beauty treatments and tattooists. However, given that the Government, the largest employer in the health and care sector, is not making the vaccination mandatory, it would be risky to adopt a different approach.
There are also a substantial number of workers who will be unable to comply with a requirement to be vaccinated through no fault of their own, see Point 7 What Are The Discrimination Risks Associated With Vaccination?
As the Government has not imposed a mandatory vaccination policy, then no other employer can impose a mandatory policy and can merely facilitate and strongly encourage. The prospects of a successful dismissal of an employee who refuses to be vaccinated are practically nil. The safest and less contentious approach would be to follow the Governments approach and promote take up of the vaccine rather than to enforce roll-out.
- If We Opted For A Mandatory Vaccine Policy Could We Dismiss An Employee For Failing To Be Vaccinated?
The legality of requiring employees to be vaccinated as a condition of attending work and the fairness of taking disciplinary action in the event of non-compliance, like many things in employment law, is a question of what is reasonable.
If an employee refused consent for a vaccination, deciding on whether it was reasonable in the circumstances to take disciplinary action would depend on the reasons given for the refusal and your justification for requiring vaccination in the first place.
- The sector and nature of the workplace (it is more likely to be viewed as reasonable in the care sector although consideration should be given to the fact the Government are not taking a mandatory approach);
- The reason for insisting on vaccination (e.g. to allow business travel abroad)
- The employee’s reason for refusing the vaccine (are they legitimate such as illness or pregnancy); and
- Whether any other steps to mitigate infection were available (such as redeployment or working from home).
The legitimacy of your aims and whether your policy is proportionate is likely to vary over time. For example, once ‘herd immunity’ has been established, it will be harder to justify not making any exceptions for vaccine-objectors.
- How Can We Encourage Vaccination?
If you are keen that your employees take up the vaccine you should write a non-contractual policy outlining the benefits of getting the vaccine and any arrangements for employees to be immunised.
If an employee does not want to be vaccinated, you could meet with them again privately to explain the benefits again and listen to their concerns. You should be sensitive towards individual situations and must keep any concerns confidential, in particular as some people may be resistant to taking the vaccine on health grounds or on grounds that are protected from discrimination under the Equality Act 2010.
Employees who are well informed of the impact of Coronavirus on the business and are given all necessary information to make their decision are more likely to take up the vaccine when offered it.
- Can We Ask Employees To Produce Proof Of Whether They Have Been Vaccinated?
Requiring evidence of vaccination gives rise to significant data protection issues. Details about an employee’s vaccination status is likely to be considered special category health data, which means employers will have to identify a particular GDPR exemption for processing it. Potential grounds may include where it is necessary for performance of rights and obligations in connection with employment, such as maintaining a safe place of work. A policy would also be required, covering the collection of such data and its retention (i.e. only retaining the information for as long as it is needed).
Even if permitted by privacy law, an employer cannot require an employee to disclose such information against their will. Whether any adverse action could be taken against an employee who refuses is likely to depend on the grounds of their objection, but it would seem reasonable for an employer to be permitted to ask the question as part of a wider policy of encouraging staff to be vaccinated.
- Should We Offer Time Off For Vaccination Appointments
There is no automatic entitlement for employees to take time off work to attend vaccination appointments, or to be paid if time off is granted. However, employees may have a contractual right to paid or unpaid time off for medical appointments.
If your intention is to encourage employees to be vaccinated, offering employees additional paid leave for vaccination appointments would help you achieve your aim.
1 full day should be sufficient if you allow the employee to split that into 2 half days, half day for the first appointment with the 2nd half day to be used within the 12 week timescale for the seconf injection.
It’s normal practice to ask for proof of appointments when allowing time off work but generally the Coronavirus Vaccinations are booked over the phone or via the internet and not everyone has received proof of the appointment.
Return to work following vaccination appointments
The Government’s guidance on What to expect after your COVID-19 vaccination states that individuals can resume normal activities as long as they feel well.
You could therefore remind employees who take time off for the vaccination that should they feel unwell afterwards that they should use your normal sickness absence policy.
- Can We Provide An Inhouse Vaccine Programme For Employees?
The government’s medical experts have published an outline of how the vaccine will be rolled out. It is clear from this that healthier, younger members of the public will be the last to be offered a vaccine.
The Government have said that even when supplies increase, stocks of the vaccine are likely to be fully absorbed by the NHS and will not therefore become commercially available for some considerable time.
When supplies do become commercially available you may be prepared to pay for your employees to be vaccinated, in a similar way that large numbers of employers do for flu vaccinations ever year.
If the vaccine is provided at work then the time taken in getting it (queueing, the injection itself, getting the cotton wool swab, etc.) will be working time for NMW purposes.
- What Should We Do About Contractors, Visitors and Customers?
It is not of course just employees who can spread Coronavirus. Contractors, visitors, customers and other third parties that are allowed on your business premises are likely to weaken any argument that all employees have to be vaccinated.
- Can We Make An Offer Of Employment Conditional Upon An Employee Proving That They Have Been Vaccinated?
The risks of discrimination claims (as referred to below) are the same from potential employees as they are for existing employees.
Furthermore, an employer cannot require an employee to disclose such information against their will. Whether any adverse action could be taken against an employee who refuses is likely to depend on the grounds of their objection, but it would seem reasonable for an employer to be permitted to ask the question as part of a wider policy of encouraging staff to be vaccinated.
We don’t yet know what evidence, if any, individuals will be provided with once they have been vaccinated. Setting such a condition in the offer stage will almost inevitably lead to delays in the recruitment process.
What About Existing Employees?
Enforcing such a clause on an existing employee without their express and implied agreement would be in breach of contract and employees would be entitled to resign and claim constructive unfair dismissal. It would be very difficult to argue in a tribunal that the change in terms was reasonable.
Before dismissing an existing employee you would need to be seen to consider alternative ways of working such as permanent homeworking.
In short, this is fairly straightforward from a legal point of view at present. Under current legislation, it is almost certainly going to be unlawful for any employer to introduce a “no jab, no job” policy. And since there does not appear to be any parliamentary appetite for such far-reaching legislative change, this legal position looks likely to continue.
- What Are The Discrimination Risks Associated With Vaccination?
Treating vaccinated staff differently to unvaccinated staff would mean individuals with certain protected characteristics to bring claims of indirect discrimination. Examples of different treatment could include requiring vaccinated staff to return to work whilst preventing unvaccinated staff from entering the workplace or not allowing them to travel abroad for work. If employees are in the unvaccinated group due to a protected characteristic, this could give rise to issues of indirect discrimination.
Individuals with the following protected characteristics could potentially be indirectly discriminated against if a mandatory vaccination policy was imposed:
The vaccine roll-out is being prioritised largely based on age, with older (and therefore higher risk) individuals being offered the vaccine first. This means that middle-aged and younger members of the workforce will not be eligible for vaccination until around September 2021.
Any differences in treatment between vaccinated and unvaccinated staff could, therefore, be indirectly age discriminatory unless the treatment can be objectively justified.
Individuals with certain medical conditions are being advised not to have the vaccine whilst others may choose not to have the vaccine. These employees may be disabled for the purposes of the Equality Act 2010, and their decision not to get vaccinated could be ‘something arising from’ that disability. Differential treatment could, therefore, lead to successful indirect disability discrimination claims unless the employer could show an objective justification for the treatment. Pressing an employee to disclose their reasons why they will not have the vaccine could mean you are put on notice of a disability you did not know about and must then be prepared to make necessary reasonable adjustments for the employee.
Pregnancy and maternity
The vaccine is not recommended for those who are pregnant, breastfeeding or planning to get pregnant.
It would therefore be prudent to take into consideration the fact that many women choose not to share news of their pregnancy until three months’ gestation, and also the fact that women who are trying to get pregnant may also refuse a vaccine.
Religion or belief
People with strongly held views against vaccination might argue that they are protected as having a philosophical belief.
A successful claim using this protected characteristic would need to establish that the belief was genuinely held, cogent, serious and worthy of respect in a democratic society.
If an employee refuses to be vaccinated because of a protected characteristic, and this results in detrimental or disciplinary action from their employer, they may be able to issue a direct or indirect discrimination claim and claim constructive unfair dismissal if they resign in protest. It is important to remember that discrimination claims have no financial cap, so a successful claim could potentially come with severe costs consequences in damages for the employer.
Bullying and harassment
The COVID-19 vaccination programme can be contentious and lead to the expression of strong opinions. It would be a good idea to remind employees to maintain respect for colleagues when vaccinations are been discussed.
- What Are The GDPR Considerations?
From a GDPR perspective, recording who has, and has not, received the vaccination creates its own challenges. Information about who has been vaccinated and when will constitute sensitive personal health data. The same will be true of information about who has not been vaccinated and why.
That data will need to be kept subject to all the appropriate protections against loss or unnecessary disclosure, etc. Those records will also need to be retained long enough to be used in any possible proceedings arising out of the vaccination. That might be by the government for enforcement purposes if the vaccine becomes mandatory, by other employees if a failure to take adequate precautions is alleged, by the employee himself if there are adverse side effects, or by you if it comes to action against the employee. For practical purposes these will constitute valid grounds for processing under the legal obligation and/or legitimate business interest reasons in the GDPR, especially if you provide the employee, before the vaccination, with written notice as to your intentions in this respect.
The Importance Of Maintaining Current Practices
Whilst it is hoped there is now light at the end of the tunnel following the commencement of the vaccination programme, given how long it is going to take before everyone has been vaccinated you should ensure that you maintain all of the practices which have become commonplace this year like social distancing, the use of PPE and hand sanitiser.
These practices will need to continue to be implemented for the foreseeable future, particularly where 100% take-up of the vaccine has not been achieved or where new starters have yet to receive the vaccine or where you do not require contractors, visitors or customers to be vaccinated.
- Rather than trying to introduce a compulsory vaccination programme a more appropriate approach might be to encourage the take-up of vaccinations. Effective communication with the workforce and their representatives will be key. The messaging should emphasise the reasons for promoting vaccination; and outline any permitted exceptions.
- To encourage buy-in consider inviting a healthcare specialist in to answer employees’ questions and allay any concerns.
- Whether vaccination is mandatory or encouraged, think about how to deal with any objections. The risks associated with dismissal and less favourable treatment are clear. Therefore, instead could employees be required to continue to work from home / work with appropriate additional protective measures / be regularly tested / be redeployed to a non-customer facing role etc?
- Making a vaccine mandatory when some people are unable to be vaccinated due to specific medical conditions would be unreasonable. Remember, women who are pregnant, breast-feeding or trying to conceive are currently advised against having the vaccine. There may also be other legitimate reasons for a person not to receive the vaccine. For instance a severe case of trypanophobia (fear of needles) could constitute a disability, as its consequences can include dizziness, fainting, palpitations and “emotional or physical violence”. While a small number of religious groups disapprove of vaccinations, most religions do not disagree with vaccination in principle. However, as a result of other beliefs of those religions (e.g. not eating or using animal-based products), followers may refuse a COVID-19 vaccination because of its ingredients (e.g. pork gelatine).
- There have also been reported cases of anaphylaxis following vaccination such that an employee who suffers an adverse reaction may try to initiate personal injury proceedings against an employer who has insisted on the vaccination.
- The fact remains no one can be compelled to have a vaccination in the UK, so an employer’s requirement for staff to be vaccinated would likely not be considered a ‘reasonable instruction’ or a lawful basis for withholding pay or dismissing an employee. Imposing such a requirement would potentially be a breach of the implied term of trust and confidence, enabling an employee to resign and claim constructive dismissal. If an employee was successful in a constructive unfair dismissal claim, they would be entitled to an unfair dismissal award of a few thousand pounds (calculated on age and length of service) and compensation for loss of earnings of up to £88,519 (or 52 weeks gross salary – whichever is the lower).
- Where an employee refuses to have the vaccine the reason for refusal could be protected from discrimination by the Equality Act 2010. Indeed, the COVID-19 Secure Guidelines suggest that employers should be mindful of the particular needs of those with protected characteristics.
- Gathering evidence of vaccinations will lead to data protection issues and the need for an impact assessment to determine, for example, what personal data is required and why (retaining records of who has been vaccinated for health and safety reasons is likely to be permitted); how it will be kept secure; who will have access to it, and for how long.
- If the employee suffers serious side effects from the vaccination you insisted upon you could be liable. For instance, if you don’t keep the vaccine in approved conditions, don’t properly vet the administering medical organisation, don’t provide appropriate facilities for it if done on site, etc., then (to the extent causation is established) it will be you who is liable since that would be a basic failure in your health and safety duties to the employee. There is nothing which you could ask the employee to sign which would alter this or which would be a valid waiver of any such claims.
- Failing to recruit a potential candidate, dismissing an existing employee or subjecting an existing employee to less favourable treatment (e.g. pay reduction, not allowing attendance at work on health and safety grounds) for failing to be vaccinated risks discrimination claims from potential or existing employees with relevant protected characteristics.
- There may be more scope for an employer to insist that an employee is vaccinated if it is critical to the business mission that employees are vaccinated such as in care homes, NHS or public facing essential worker roles, but even so this should be weighed against the reasons for any employee objections and whether disciplinary action including dismissal will be considered to be a reasonable sanction.
- It is difficult to see how forcing employees to undergo a medical procedure, the efficacy of which has yet to be established, would be regarded as “proportionate” when there are other less draconian means that are arguably more effective, such as working from home, social distancing, wearing of face coverings and hand washing.
Template Vaccination Policy and Letter Encouraging Employees To Be Vaccinated
My model Vaccination Policy assumes that you are focused on encouraging employees to have the vaccine when they are eligible under the national immunisation programme.
Letter encouraging employees to be vaccinated
My model letter provides employees with information on the national vaccination programme and encourage them to be vaccinated when the opportunity arises.To download the Template Vaccination Policy and Letter Encouraging Employees To Be Vaccinated complete your details below and an email containing the document will find it’s way to your inbox: