Covid-19 vaccination – employment law considerations
In this bulletin, we look at the vexed question of whether employers can require staff or job applicants to be vaccinated and what are the associated risks.
Some employers are saying that they will not employ new staff unless they have had the vaccine, creating the “no jab no job” headlines we have seen. However, could this kind of policy be discriminatory? Can employers require their current staff to have the vaccine? Will employers still need to have Covid-secure measures in place when staff return to the office? Government guidance is awaited on these tricky issues. In the meantime, the points below should help employers make informed decisions about the best way to move forward.
The information contained in this bulletin is accurate as at 4 May 2021.
Can an employer require an employee to have the vaccine?
The short answer is no, not usually. The government has not legislated for the vaccine to be mandatory, so on balance it would be risky for employers to insist on vaccination. However, it may be necessary to make vaccination mandatory where it is necessary for someone to do their job, for example where they travel overseas and need to be vaccinated.
Whilst legally it would be very difficult for an employer to insist on current employees having the vaccine to keep their jobs, there may be more leeway when looking at new hires. From a legal perspective, employers could insert a clause in their contract which makes having had a Covid-19 vaccination a condition of new employment. However, to avoid successful claims of discrimination an employer would need to look at each role and consider the health and safety risks before including the clause in any particular contract and also document their decision making and rationale.
If an employer were to insist on such a clause before the vaccine had been fully rolled out then there is a risk that the requirement could indirectly discriminate against younger workers who will in general (aside from certain cases) be the last to be offered the vaccine according to the vaccine rollout plans. The target is that by 31 July 2021 the first dose of the vaccine will have been offered to all adults in the UK.
Also, there may be those who cannot be vaccinated due to existing health conditions or because they are pregnant. People may also refuse the vaccine because of religious or moral beliefs. Refusal to take the jab appears to have been more common among ethnic minorities in the UK which may open up the potential for race discrimination claims as well.
Remember that the Equality Act 2010 applies to job applicants as well as those in employment. An employer must not discriminate against or victimise a person in the arrangements it makes for deciding who to offer employment to and also by not offering employment.
It is possible that some businesses might be able to prove that vaccinations are crucial for health and safety purposes, for example, protecting care home residents. Several care home operators in the UK have put in place a no jab no job policy for new staff due to some concerns about the level of take up of the vaccine amongst care home workers. In April the Department of Health and Social Care published a consultation on making Covid-19 vaccination a condition of deployment for workers deployed in care homes with older adult residents. This would not include those who are medically exempt from vaccination.
However, many businesses which operate from offices which are not customer facing are likely to find it very difficult to justify insisting on vaccination.
Are there data protection issues with requiring evidence of vaccination?
An employer asking employees to tell them whether or not they have been vaccinated is a data protection and privacy issue. This kind of information would be classed as special category personal data. Employers would have to carefully consider why they need evidence of vaccination and whether it is appropriate for their business. Doing so will require a data protection impact assessment which must consider not only the reasons for requiring the data but also issues like how it will be held securely and who will have access.
What are the other risks to employers of insisting on employees having the vaccine?
Employers may be at risk of claims for unfair dismissal from employees with over 2 years’ service, or discrimination claims from workers with any length of service or job applicants. Compensation for unfair dismissal is capped at £89,493 (from 6 April 2021) or a year’s pay, whichever is lower, but is unlimited for discrimination claims.
What should employers be doing?
Under health and safety legislation employers have a duty to protect the health of their employees and anyone on their premises. The vaccine should be considered as part of Covid-19 risk assessments, as a potential additional measure to control the risks associated with contracting the virus at work. We would certainly advise against trying to force anyone to have the vaccine.
According to the government’s roadmap out of lockdown the plan is that from 21 June 2021 there may be no legal limits on social contact. However, employers will need to carefully consider what restrictions they will have in the workplace and they will still need to meet Covid-secure standards. It is unlikely that everyone having proof of vaccination will be part of a Covid- secure regime.
Although widespread vaccination may eventually reduce the measures required to make a workplace Covid-secure, it remains to be seen if and when the types of measures employers have introduced since the start of the pandemic can be reduced or removed altogether. Remember that even when the vaccine has been offered to all adults, the vaccine will not be 100% effective, and there may be both employees and patients/clients/customers who cannot receive the available vaccines.
Employers should, therefore, be cautious about treating the vaccine as a mechanism to remove other measures. They should also continue to make reasonable adjustments for those who may be particularly at risk and continue to allow people to work from home if they want to. Employers may also want to consider regular testing of employees via lateral flow tests which are now available for all.
Employers could prepare a non-contractual policy outlining the benefits of having the vaccine and possibly require that all employees who can be immunised are immunised. But if staff refuse this should be dealt with on a case by case basis to understand the reasons – in a workplace where there is sufficient justification to be asking staff at all about vaccination. Now is a good time to be reassuring employees of the current Covid-secure regime in place and how it is ever adapting so you are providing a safe place of work in light of the current public health situation. Any trust you can create now will pay off later.
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