To vaccinate or not?
Although there is cause for optimism with vaccine roll-outs, we are going into 2021 with our fair share of COVID-19-related challenges, not least the current national lockdown.
Maybe because we are all focussing on the positives, we are seeing lots of queries about the new vaccination programme, what employers can require and what they will be able to do if people refuse to be vaccinated.
Vaccination is likely to be a big issue for employers in 2021. The intention is to roll out the vaccine in stages, and the first stage will reach those who are over 50 or who have underlying health conditions that make them particularly vulnerable. This means that, for staff under the age of 50 it is not realistic to expect the vaccine to be offered to staff before the summer/autumn.
Many employers appear to wish to make the vaccination compulsory. Pimlico Plumbers have publicly stated their intention to join the list this week.
Could an employer take the view with staff that 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 think that employers can legitimately consider taking this position. In particular, we think that an employer could mandate the 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 may be 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.
It will certainly be open to employers to actively encourage staff to be vaccinated though, 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.
What 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 trump those reasons. 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.
These are early days for the vaccine, but we know that some employers want to make their position known. It is certainly worth considering how best to explain the employer's view to the workforce and start consulting with staff about the implementation of a policy that will begin to affect working age staff shortly.