With the United Kingdom’s vaccination programme well underway, many employers are struggling with the best course of action for how to approach COVID-19 vaccines and their workforce. As mantras like “No Jab, No Job” circulate around the news, it raises the key question of whether employers can require their employees to be vaccinated before returning to work. To date, the UK government has left it up to individual employers to decide what is appropriate and justified in the context of their own workforce, and those decisions should be made with care. Here are a few of the most important things to consider as an employer deciding on the best course of action for requiring or encouraging COVID-19 vaccines.
The short answer is no. There is no specific legislation allowing an employer to require its employees to undergo medical treatment of any kind, including vaccination. That said, under common law, there may be instances where requiring individual employees to be vaccinated is considered a reasonable management request. Those instances very much depend on what the employee does in their role, how much interaction he or she may have with a vulnerable population, and considerations with respect to the overall protection of the workforce. Employers who are considering mandating vaccines should also consider whether other, less invasive means of protecting these populations may be sufficient as an alternative, such as requiring frequent COVID-19 tests, or ensuring comprehensive use of PPE and other workplace social distancing measures.
Some employers who have a widely drawn medical examination clause in their employment contracts could potentially rely on this to trigger a mandatory vaccine requirement. However, such a clause is highly unlikely to appear in most standard employment contracts. Even if an employer has a medical examination clause, the business should still justify the vaccination requirement with clearly documented reasons, such as ensuring the safety of its workforce and people they come into contact with, before enacting a policy. Employers should have plans in place for employees who refuse, such as letting them work from home, have more testing, or other reasonable accommodations.
Employers may introduce a clause requiring proof of vaccination in the employment contracts of new joiners, and refuse to employ anyone who does not comply. However, the employer would need to justify the vaccination requirement based on a carefully considered, business-specific safety analysis, and would also need to consider any potential discrimination risk where, for example, an individual cannot be vaccinated on the basis of a pre-existing disability, or because they are pregnant.
There may be a number of reasons for employees refusing to be vaccinated, including pre-existing medical conditions or religious beliefs. Any disciplinary action against employees who refuse a vaccine for such reasons could give rise to discrimination claims, so it’s very important for an employer to approach each situation on a case-by-case basis. Where the employer believes it can objectively justify imposing a mandatory vaccination requirement because the risk to the health of others is so great (for example, care home staff), then they may have a valid defence to a discrimination claim. However, it will be extremely important for the employer to document its analysis and decision, and to consider whether any less invasive measures (e.g., frequent testing) may in practice have a similar effect from a safety perspective.
Employers have broad discretion as to whether to encourage their employees to get vaccinated. If they wish to, they can promote the benefits of being vaccinated to employees through targeted internal marketing and could provide financial incentives such as reimbursing travel costs to vaccination centres or providing paid leave to allow the employee to receive and recover from the vaccination. Employers will need to consider the extent to which they encourage employees to be vaccinated, balancing all relevant stakeholder rights and interests, given that it is ultimately a personal choice for each employee.
The privacy aspects of asking an employee if they’ve been vaccinated and then storing or sharing that information is very important. The UK GDPR places obligations on the employer to protect the employee when collecting, storing, and sharing personal health data, including vaccination status, COVID-19 test results, and exemptions for religious beliefs or medical conditions. Further advice should be sought by employers who are considering requesting such data from employees.
The rapid rollout of the UK’s vaccine programme has triggered important practical and ethical considerations for employers. Employers should refer to employees’ contracts before putting in place a vaccination policy and also consider any valid reasons for refusal that employees might have. The legitimacy of employers' aims and whether their policies are proportionate to risk will depend on the circumstances and the workplace in question. Ultimately, encouraging employees to be vaccinated in order to protect themselves and others will likely create less risk from an employment law and privacy perspective than mandating it.
If you are interested in COVID-19 Vaccines, Remote Working and Leave Issues, we invite you to subscribe to Morgan Lewis publications to receive updates on trends, legal developments, and other relevant areas.