No jab, no job?
The speedy rollout of the Covid-19 vaccine means that the question of whether employers can make vaccination mandatory for their staff has become more pertinent as the weeks go by.
Currently about half the population in the UK has received at least one dose of the Covid-19 vaccine. If all goes according to plan, the rest of the adult population should have been offered vaccinations by the end of July.
Although the government has not made having the vaccine mandatory to date, it is currently consulting on proposals to make staff working in care homes with older adults in England have the Covid-19 vaccine as part of their conditions of employment. This follows news that nearly half of all care homes with older adult residents do not meet SAGE's recommended vaccination thresholds of 80% of staff and 90% of residents to provide a minimum level of protection against outbreaks of Covid-19. The consultation closes on 21 May.
Will vaccinations be made mandatory for staff?
We recently sent out a vaccination survey to which well over a hundred organisations responded. 18% of those surveyed said that they will require new staff to be vaccinated, while 17% will require vaccination for existing staff carrying out front line roles, and 17% will require all existing staff to have the vaccine unless for some reason they can't. Anecdotally, this figure of compulsory vaccination is rising as we all get used to the idea of vaccinations.
The majority, 69% of those who responded, were either undecided, or were taking the route of strongly encouraging staff to be vaccinated rather than stipulating that they have to be. Others were waiting for further government guidance and possible changes to the law, while one respondent said that they were going to wait until vaccines were readily available to all before mandating vaccination for staff.
Can an employer take the view with staff that having a vaccine is the most reasonable way of mitigating the risk of Covid-19, having carried out risk and equality impact assessments?
The matter would be tested if an employee refused and challenged the decision.
We believe that it is reasonable to expect the majority of employees to be vaccinated where there is a strong business requirement for this. Looking after vulnerable people should be a robust justification to require vaccination and where there is scientific data to back this up, vaccination could be a reasonable requirement for an employer to make.
In our view an employer could mandate vaccination as a health and safety requirement where employees are working in contact with the general public. There will of course be issues to consider, such as any side effects or long-term effects of the vaccination (if there are any) and the risk of any potential claims against the employer.
It's possible that an employee could argue that a mandatory requirement to vaccinate is discriminatory. Could being an "anti-vaxxer" be a protected belief under the Equality Act 2010? Some employees may also have religious objections to having the vaccine; some vegan employees may object if the vaccine includes animal products and employees with certain medical conditions are advised against or choose not to take the vaccine. For this reason, employers will have to be ready to justify any mandatory vaccination policies which may, in certain circumstances, be difficult.
Our survey asked employers about the reasons being given when staff have refused to take up the vaccine. 34% responded that pregnancy had been cited as a reason, while 33% said employees gave other medically based reasons. It has of course now been recommended that pregnant women should have the vaccine. Religious based reasons were given in 17% of cases, while only 1% cited veganism. A further 33% of those surveyed have had staff citing anti-vaxxer beliefs, and 37% have been told by employees that they did not feel the vaccine was trustworthy.
What happens if employees object for ideological reasons?
It may be that an employer feels so strongly about the benefit of vaccination against Covid-19 that it can still require employees to have the vaccine. Could those circumstances lead an employer to dismiss an employee for a refusal to accept the vaccine? And could an employee be successful in arguing against that, in a claim for unfair dismissal and discrimination? After all, employers don't generally require employees to have other flu jabs or indeed other jabs, which are not compulsory in the UK.
What does the future hold?
In our final survey question we asked whether employers would require staff to have the vaccine later in the year when it will be available to all adults. 25% said yes and 12% said no. The majority, 63%, said that they were not sure yet.
Irrespective of whether an employer decides to make vaccination mandatory for staff, it will certainly be open to them to actively encourage staff to be vaccinated, and to explain the health and workplace benefits that vaccination will bring. Another thing to consider is implementing paid time off to be vaccinated, so employees feel incentivised to do it.
The issue of whether to insist on vaccination is becoming more pressing and employers may wish, if they have not done so already, to start consulting with staff about the implementation of a vaccination policy.
How we can help
- We've been advising clients on formulating the business reasons you will need to justify any mandatory vaccines
- We've been advising on the Data Protection and document retention issues when you wish to record who has been vaccinated
- We can also provide you with briefing your management team on the issue
- We can, for a fixed fee, provide you with a pragmatic vaccination policy