COVID-19: Vaccination and the workplace
The vaccination programme is gathering pace. With a recent survey suggesting that 23% of employers plan to require their staff to be vaccinated, and talk in the press of 'no jab, no job' work contracts, what exactly are you allowed to do when it comes to managing vaccination-related workplace issues and risks?
Can employers require all staff to be vaccinated?
Probably not. Although the government has powers to prevent and control the spread of infectious diseases, it doesn't have the power to require people to undergo medical treatment. This includes vaccination.
The government's Green Book on immunisation states that consent from the individual is needed before any medical treatment, including all vaccines.
The government appear to have no plans to change this, repeatedly emphasising that people won't be forced to have a vaccine if they don't want one.
All of this makes it difficult for you to automatically insist on it. So, too, does the statement from Acas that 'Employers should support staff in getting the coronavirus (COVID-19) vaccine, but they cannot force staff to be vaccinated'.
Can employers require certain staff to be vaccinated?
Possibly, but the position isn't clear. The Health and Safety at Work Act 1974 does require you to take all reasonably practicable steps to ensure the health, safety and welfare at work of all your employees. A similar duty exists under the general law. On its own, that's probably still not enough to justify mandatory vaccination, but it might be relevant background in some cases.
That's because an employee has a duty under the general law to obey the lawful and reasonable orders of their employer. Acas have suggested that you should only decide it's necessary for staff to be vaccinated 'if getting the vaccine is required for someone to do their job' (e.g. if staff travel to other countries for work). Others have suggested a more nuanced approach, where reasonableness is a question of degree. Relevant considerations may include the nature of the role, the circumstances of each employee, the risks to other staff or people they encounter, and the workplace's size/layout.
On this basis, it may be reasonable – for example – to require healthcare staff or teachers and support staff to be vaccinated. But it's less likely to be reasonable for staff who have limited contact with others and for whom other protective measures can be put in place.
A key question is likely to be whether vaccination provides greater protection than other measures. It's not yet known for sure that vaccination reduces or prevents transmission of COVID-19 (trials are ongoing). If it's found that it doesn't, it's unlikely that you can successfully argue that compulsory vaccination is proportionate to keep others safe.
Unfortunately there are no easy answers here – you'll need to get legal advice if you think requiring vaccination may be justified as it'll depend hugely on your circumstances.
Can employers put vaccination requirements into staff contracts?
You might want to change an employee's contract to add a compulsory vaccination requirement. However, this is potentially problematic. You'll need their agreement – if you make the change without it, you'll be in breach of contract and the original terms of the contract will remain in place. The employee then has options:
- They can waive the breach by continuing to work without complaint under the new terms.
- They can work under the new terms under protest and claim for breach of contract. If the change imposed is substantial, you might be deemed to have dismissed the employee, meaning they could also claim for unfair dismissal.
- If the breach of contract is fundamental, they can resign and claim for constructive dismissal.
It may be easier to only insert the vaccination requirement into contracts for new staff. However, unless you're recruiting significant numbers of people, this is unlikely to result in any greater protection for your overall workforce. It potentially also opens you up to discrimination claims (more on this below).
In short, it's currently risky – don't try and make vaccinations a part of staff contracts without getting legal advice first.
Can employers take action against staff who refuse to be vaccinated?
Assuming you've legitimately introduced a compulsory vaccination policy or a contractual vaccination requirement, then, in theory, yes you can. But it's not without risks.
Obviously, you can't physically enforce a vaccination – that would be a criminal offence. There are potentially 2 actions you might consider:
- Refusing to allow the employee to come to work (i.e. a suspension on medical grounds); or
- Starting disciplinary proceedings.
An employee suspended on medical grounds is entitled to full pay for up to 26 weeks. If you start disciplinary proceedings, you could suspend them pending the outcome to ensure the safety of others, but they're entitled to full pay until the proceedings are concluded.
In both cases, you'll have to properly take into account the employee's circumstances. There are many reasons why they might reasonably refuse a vaccine: e.g. medical advice, religious or philosophical belief, pregnancy, disability, wanting to keep control over their medical choices or wanting to wait for more evidence of safety.
Some might even be advised not to have the vaccine due to a medical condition or may have severe trypanophobia (fear of needles); both could mean they have a disability and be protected under the Equality Act 2010 if they refuse the vaccine. Note, though, that those with a history of anaphylaxis to food, an identified drug or vaccine, or an insect sting, have been advised that they can still receive any COVID-19 vaccine if they're not known to be allergic to any of its components. All vaccination sites should have equipment for managing an anaphylactic reaction.
If you compel an employee to get a vaccine and they then suffer an adverse reaction, they could try and bring a personal injury claim against you.
More evidence is needed before pregnant women are routinely offered the vaccine. Women who avoid vaccination because they are planning a pregnancy may be able to claim sex discrimination if, as a result, you treat them less favourably or later dismiss them.
Ultimately, any policy or contractual requirement about vaccination that adversely affects people from a protected group (race, age, sex, disability and religion/belief being the most likely) will potentially be indirectly discriminatory. A dismissal resulting from the implementation of such a policy or requirement may well be unfair.
It's worth noting, though:
- The COVID-19 vaccines being used in the UK don't use pork gelatine and are endorsed by the British Islamic Medical Association, Hindu Council UK, and the Board of Deputies of British Jews. That doesn't, though, stop religious objections on other grounds.
- While veganism is a protected belief, the Vegan Society accepts that vaccination 'will play a fundamental role in tackling the pandemic and saving lives' and encourages vegans to look after their health and that of others. Of course, though, the Vegan Society doesn't represent all vegans.
- Anti-vaccination beliefs based on a wide variety of conspiracy theories may not be protected as a philosophical belief. That's because there isn't an adequately coherent belief system behind them and such beliefs may not be worthy of respect in a democratic society. That doesn't stop such beliefs from being protected if the basis for them exists less at the fringes.
The critical point is that you must always allow for exceptions. Listen to any concerns and objections and take them seriously. Even if you've put in place a policy or contractual requirement, you won't be entitled to act on it if your employee's refusal is reasonable in all the circumstances.
Pressuring employees to be vaccinated, through threats of suspension or disciplinary action, carries very real and potentially significant legal and financial risks. It could also negatively affect your business reputation and staff morale.
A better approach is to encourage staff to be vaccinated – educate them on the benefits of vaccination by providing impartial, factual information to help them make an informed decision.
Can employers relax safety measures after vaccination?
The short answer is no. England's deputy chief medical officer Professor Jonathan Van-Tam has warned that people who have received their vaccination must still obey social-distancing rules. Businesses continue, therefore, to be required to risk assess their workplaces and take steps to ensure they're COVID-secure, through measures such as home working, social distancing, face coverings and so on.
It's still too early to say whether widespread vaccination will eventually reduce the measures required to make a workplace COVID-secure. It may be a long time before enough people are vaccinated; it's very unlikely that any vaccine will be 100% effective, and there will always be those who cannot receive a vaccine.
You should therefore be cautious about treating the vaccine as a mechanism to remove other measures. Instead, continue to follow government guidance and monitor it for changes.
However, vaccination might alter your approach for some clinically highly vulnerable staff. Having the vaccine means these workers can better protect themselves and, subject to an individual risk assessment and both vaccine doses, they may be able to finish shielding and return to the workplace (if it's essential that they do so).
Finally, keep in mind that you may need to take extra steps to protect any staff who have a genuine medical reason that prevents vaccination.
What about data protection implications?
If you collect any information about whether employees have (or haven't) been vaccinated, you must handle it as special category data in accordance with the Data Protection Act 2018. The ICO have recently added guidance on vaccinations to their 'Data protection and coronavirus information hub' to help you do this.
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