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Updates and Considerations for UK Employers Regarding COVID-19 Vaccines

December 22, 2020

The United Kingdom on 2 December became the first country to approve the Pfizer-BioNTech vaccine for coronavirus (COVID-19), with approximately 500,000 people receiving the vaccine in the first two weeks of the largest vaccination programme in British history. For employers, news of the vaccine and its swift rollout have prompted considerations of the potential implications for the workplace. While the UK government is not currently proposing any mandatory vaccination programme, there are considerations that UK employers should take into account regarding vaccines and the workplace.

On 9 November 2020, Pfizer and BioNTech announced that an interim analysis demonstrated that their vaccine candidate against COVID-19 is 90% effective in protecting people from COVID-19 (studies since have shown that the vaccine is 95% effective, as of 17 December 2020). On 16 November, US company Moderna announced that its COVID-19 vaccine candidate is 94.5% effective, although it is not expected to be available outside the United States until 2021. And AstraZeneca announced on 23 November that its COVID-19 vaccine candidate, developed in the United Kingdom by Oxford University and AstraZeneca, had up to 90% efficacy depending on the dosage regime.

The director of the US Food and Drug Administration (FDA) issued an emergency use authorisation approving the Pfizer-BioNTech vaccine on 11 December, and distribution across the United States started on 13 December. The European Medicines Agency (EMA) met on 21 December 2020 to make a decision on whether to also authorise the Pfizer BioNTech vaccine for use across the European Union. Pfizer expects to be able to supply up to 50 million vaccine doses in 2020 and up to 1.3 billion doses in 2021.

Countries around the world are considering who will be given priority for the vaccine within their populations and working out how to manage some of the manufacturing and logistical challenges in achieving mass immunisation. Many important questions also remain about the vaccines, such as how long any immunity lasts and the extent to which vaccinated individuals remain able to carry and transmit the virus while not suffering from its symptoms.

UK Government’s Response

In the United Kingdom, the Pfizer-BioNTech vaccine is the first COVID-19 vaccine to be authorised by the Medicines and Healthcare products Regulatory Agency (MHRA). The vaccine is required in two doses, three weeks apart, in order to be fully effective. The government’s Vaccine Taskforce has worked on securing 40 million doses of the Pfizer-BioNTech vaccine for the United Kingdom. The AstraZeneca and Moderna vaccines are now under review and if similarly authorised by the MHRA, the United Kingdom is expected to have significantly more doses available in the near future.

On 16 December, the UK government published a press release on the administration of the Pfizer-BioNTech COVID-19 vaccine in the first week of the vaccine rollout, stating that the majority of the vaccines have been administered to those aged over 80 years, care home workers, and NHS staff through more than 70 sites across the United Kingdom. GP-led centres started vaccinating patients this week in England and it is expected that the rollout will extend to care homes in due course. Notably, Health Secretary Matt Hancock has confirmed the UK government’s position toward mass vaccination, stating that “we are not proposing to make this compulsory—not least because I think the vast majority of people are going to want to have it.”

In mid-December 2020, a new variant of COVID-19 was detected in some parts of England, mainly concentrated in the southern parts including London, Kent, parts of Essex, and Hertfordshire. Although more than 1,000 cases with the variant have been identified in nearly 60 different local authority areas, Health Secretary Hancock stressed that there was “nothing to suggest” that the new variant caused a worse COVID-19 disease or that vaccines would no longer be effective. Whilst the full effects of this new strain are yet to be seen, its emergence may nonetheless affect public opinion on the likely efficacy of the COVID-19 vaccine in the long term.

No Compulsory UK-Wide Vaccination Programme

Under current legislation, the UK government cannot compel members of the public to be vaccinated.

The Public Health (Control of Disease) Act 1984 (Public Health Act) provides the UK government with powers to prevent, control, or mitigate the spread of a contamination or an infection. However, the legislation specifically provides that individuals must not be compelled to undergo any mandatory medical treatment or vaccination. The Coronavirus Act 2020 (COVID-19 Act) recently extended this prohibition to Scotland and Northern Ireland.

The prohibition on compulsory medical treatment or vaccination is reflected in the government’s Green Book on immunisation and in the NHS Constitution. The Green Book provides up-to-date information on vaccines and vaccination procedures for vaccine-preventable infectious diseases. It states that consent from the individual must be obtained prior to the start of any medical treatment, including the administration of all vaccines. Similarly, the NHS Constitution, which outlines a list of responsibilities directed at patients intending to use its services, includes a non-legally enforceable request to “please participate in important public health programmes such as vaccination.”

Therefore, consent and voluntary participation are key. Under the circumstances, and in the absence of a significant deterioration in the pandemic prompting a change in approach, any subsequent legislation regarding a COVID-19 vaccination is likely to still be subject to the general prohibition on compulsory medical treatment or vaccination.

Were the government to change its stance, with a view to making vaccination compulsory, it would undoubtedly face significant legal challenges under human rights laws, including (for example) under Article 8 of the European Convention on Human Rights. This article provides protection for an individual’s private and family life and includes the right to dignity, personal autonomy, and physical and psychological integrity, i.e., that an individual has the right to not be physically or psychologically interfered with. Any compulsory vaccination programme might (depending on the circumstances) also trigger Article 3 regarding degrading treatment.

Can Employers Make Vaccination Mandatory?

At present, we consider this highly unlikely. As the UK government has no power at law to compel vaccinations, employers in the United Kingdom have no statutory right to compel an employee to be vaccinated.

It is possible that an employer might theoretically have a prima facie right to compel a vaccination at common law; for example, based on a power under a contract of employment through a widely drafted medical examinations clause. However, any such power is likely to trigger human rights concerns (as referenced above); it may cut across serious criminal laws regarding causing unlawful injury to others; and, in any event, a vaccine could only be lawfully administered provided that the individual consented to such treatment. It is highly doubtful that an employee could be described as consenting to treatment under any degree of compulsion by their employer.

From an employee relations perspective, it is unlikely that in any event an employer-mandated vaccination programme would be well received by employees, particularly in the early stages of its rollout when some employees may have strong concerns (or simply be hesitant) about its safety and efficacy, and with new COVID-19 strains emerging. It is much more likely that most employers will take a similar approach to that of the flu vaccine, providing information about the availability of the vaccine (following any published government guidance) and/or making arrangements to offer the vaccine to employees who wish to have it, but on a voluntary basis only. This would reduce the potential for legal challenges (on the grounds outlined above), as well as any backlash from those opposed to the vaccine.

In theory, it may also be possible for employers to implement other (more indirect) measures such as not allowing employees to return to the office, or to take part in certain events, if they have not had the vaccine. Whilst this would not technically constitute compelling employees to have a vaccination, in practice it is likely to have the same effect. Such a measure is unlikely to be unanimously welcomed and would still be likely to generate legal risk. Employees may, for example, have various (valid) reasons for not wishing to have a vaccine, some of which might also relate to protected characteristics under equality legislation. Excluding employees in such circumstances might lead to claims of unfair treatment, such as discrimination or (were an employee to resign in protest) constructive unfair dismissal. Employers should be mindful of these risks and of appearing heavy-handed.

Do Employers Have a Duty to Offer the Vaccine?

In certain circumstances, some UK employers may have a duty to offer a COVID-19 vaccine for health and safety reasons under the Health and Safety at Work Act 1974. This is likely to be relevant where employees are at a materially increased risk of contracting COVID-19 because of the nature of the work that they undertake (e.g., certain medical staff or those otherwise “on the frontline” of the battle against COVID-19).

Each case will need to be carefully considered on its facts, but the circumstances where a duty to offer may be engaged are likely to be limited and not incumbent on employers at large.

Conclusion

There is still a great deal of uncertainty regarding successful COVID-19 vaccines. However, based on current legislation, government announcements, and medical practice to date, it is unlikely that any future UK COVID-19 vaccination programme would compel or mandate that individuals be vaccinated: consent and free choice will remain critical.

We expect the UK government to issue more guidance in this area in due course, including for employers, as the vaccine is rolled out to the population at large next year. We will continue to monitor any new developments closely.

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CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

London
Matthew Howse
Louise Skinner
Pulina Whitaker
Lee Harding
Thomas Twitchett