Can you force employees to be vaccinated against COVID?

No doubt many employers (and indeed employees) will be strongly encouraging the workforce to take up vaccinations against coronavirus when eligible at the earliest opportunity. Encouraging employees by making arrangements for vaccinations at workplaces, or strongly encouraging employees to make their own arrangements, will be likely to form a reasonably practicable step to reduce workplace risk in accordance with an employer's general health and safety duties.

The government have been clear that there will be no mandatory aspect to the vaccination programme To seek to so do would be politically undesirable, unlikely to promote confidence in the vaccine and would, in any event, give rise to significant human rights challenges. A national form of "immunisation passports" is still possible, and there have been suggestions that this might form conditions of access to large-scale events (such as concerts and football games).

If the Government doesn't require employees to be vaccinated can an employer do so?

Many employers will ask staff to take up the vaccine as soon as it is available to them and would consider this to be a reasonable management request. Even more so where the work environment is one which brings employees regularly into contact with more vulnerable people and/or poses a higher risk of exposure to the virus (for example in the healthcare sector).

Employers can certainly say that you strongly encourage employees to be vaccinated, and take positive steps to enable this. However, in our view it would likely be risky in most circumstances to subject an employee to an overt/unjustified detriment, or to dismiss them, for not following this reasonable management request. It will be a nuanced problem which calls for a nuanced approach.

Reasons why employees may refuse the vaccine

There are many and varied grounds why some employees might not want, or be able, to be vaccinated. Some will be advised not to on health grounds, such as those who are pregnant or who do not have functioning immune systems). Others may cite religious or philosophical beliefs which they say prevents them from taking up the vaccine. Some may simply be untrusting of the merits or safety of the vaccinations (whether or not you agree those concerns are well-founded).

Some of these reasons will, or may, constitute protected characteristics making any forceful approach to vaccination potentially discriminatory. It may also be a straightforward breach of the implied term of trust and confidence to seek to pressure employees who do not want to be vaccinated to do so, given it is a medical procedure that would otherwise be purely voluntary and where (currently, in many work environments) it would seem likely that there are other measures you can take to sensibly limit the risk arising from a small proportion of employees choosing (or unable) to be vaccinated.

How can I encourage my employees to get the vaccine?

We would recommend that employers adopt a similar model to that of many NHS trusts (which do not generally mandate vaccines). Instead there is a communication campaign that describes there being an expectation employees will be vaccinated as soon as they can and seeks to educate employees (sensibly) as to the benefits of doing so (prevention of risk of harm to them and to others) and where to seek information if they have concerns.

If you have concerns about employees who are not going to be vaccinated, and whether and how you could manage the risk to them and others that arise from this, we would recommend that you take the time to discuss the issue with the employee, run through the benefits and any government safety information, make sure that they understand not having it increases the risk to them and others working with them or coming into contact with them and seek to gain an understanding as to why they are not able or willing to be vaccinated. You can then go away and consider the health and safety implications as they apply to your workplace and that particular individual's role, including importantly whether there are other ways that you can effectively manage the risk of transmission, and seek advice.

Data protection risks of tracking employee vaccine status

Employers need to be careful to recognise that, when speaking to employees about whether or not they are vaccinated (and why not), you will be collecting sensitive personal data and need to be cautious about what you record and how you store such data.

Employers also need to factor practical timescales into planning. There is no point urging everyone to get vaccinated immediately when this simply is not available given the priority roll out. You are more likely to be facing a mixed working environment in the medium term when some employees will have been vaccinated and some will not have been. This means distancing and other PPE measures are likely to be required for the medium term and perhaps even longer term than that (depending on the ongoing data for effectiveness and longevity of the immune response in those who have been vaccinated). The ongoing need for such measures in reality is likely to factor into how reasonable it feels to be insisting an employee be vaccinated (or else faces some detriment or dismissal).

What could you do?

  • Engage in sensitive but positive and educational internal communications in respect of the vaccinations. Some steps that might be introduced by the government and other private companies (e.g. the possibility of requiring those attending large-scale events or wishing to fly on an aeroplane to evidence vaccination) could help you to paint the positives in a practical way. Likewise, highlighting the groups who are not able (due to health reasons) to be vaccinated could act as a motivator encouraging those who can be vaccinated to protect those who cannot.
  • Encourage employees to be vaccinated by making the arrangements easy for them to do so e.g. allow employees to be vaccinated on site if this becomes an option, and give them paid time off to be vaccinated.
  • Risk assessments for staff who have been vaccinated and or those who have declined and/or are unable to have it and/or have not yet become eligible for it. This should identify whether there are tasks that those who have refused vaccination should be restricted from doing on health and safety grounds (either because of a risk posed to them or others). This will need to factor in the interim stages where some but not all of the workforce (and those they come into contact with) will have been eligible to be vaccinated.
  • Require employees who have not been vaccinated to adhere to more stringent ongoing PPE and other restrictive practices (such as continuing to work from home) to prevent the spread of infection or, where circumstances do really justify it, restrict or amend their role (all of which is even more justifiable if scientific evidence suggests those who are vaccinated are less likely to transmit coronavirus as well as contract it). We would recommend you do this only if you have solid risk assessments and/or health and safety advice in place to recommend and/or justify this.
  • Regularly test non-vaccinated employees provided that you have considered and managed the data protection issues arising from this and feel that the risk in your workplace justifies this.
  • Make vaccination a condition of employment for new recruits (subject to sensible medical and religious exceptions).
  • Potentially, offer incentives for employees who are able to be vaccinated to do so. This does carry the risk of indirect discrimination claims though (although you may be able to argue an objective justification) and may be negatively received by employees as overly interfering.

Much is dependent upon your workforce and its particular risks. We would urge employers not to have a hard line or knee-jerk response to those employees who refuse to be vaccinated. If you have concerns about how best to lawfully encourage employees to take up vaccinations and/or to deal with employees and/or health and safety concerns arising from those who will not, please contact us for advice.

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