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Coronavirus - Vaccination and employment in the UK - considerations for employers

  • United Kingdom
  • Coronavirus - Workforce issues
  • Employment law

26-11-2020

Understandably, there is currently much excitement about “breakthroughs” with several potentially effective Coronavirus (COVID-19) vaccines. However, the next crucial step will be about how to co-ordinate and conduct mass vaccination, which will be at the forefront of world governments’ attention and such events will inevitably affect employers around the globe.

We consider that the following areas will need ultimately to be addressed by employers:

1

whether, and how, to most effectively encourage voluntary vaccination? The importance of messaging, engagement and consultation, the role of trade unions and employee representatives and protecting others etc

2 ensuring that vaccination should not be viewed as the sole method for preventing risk exposure or as a substitute for safe working practices, particularly in the early stages of mass vaccination
3

whether workers can or should be prevented from attending work without proof of vaccination and, if it becomes permissible to collect employee vaccination data, how to verify the accuracy of such data – medical certificate/self-disclosure etc

4

if workers are prevented lawfully from attending work because they have not been immunised, how the right to pay might be affected. For example:

  • where the worker has not been vaccinated due to no fault of their own e.g. they are young, and not in a vulnerable group, and are not currently eligible to be vaccinated; or
  • where the worker has been unable to be vaccinated as a result of illness; fear of side-effects; mental health issues; or other genuine reasons
5

whether it is appropriate to create a "two-tier" workforce (obviously there are different considerations for those who are able to work from home versus those who cannot)

6 the GDPR and privacy consequences of workers potentially being required to prove that they have been vaccinated, and the possible inception of “COVID passports”
7 any diversity/ethical angles to vaccination (for example, special treatment for those who are pregnant; or as a result of religion or belief and, in particular, whether a belief in the virtues of not being vaccinated could be a philosophical belief)
8 whether employers can, or should, purchase vaccine for privately-rolled-out vaccination programmes, and the possible reputational issues which may flow from this
9

how employers should regulate their dealings with third parties (employer obligations to protect the health and safety of workers do not stop at the door of the workplace, but extend to their workers’ interactions with third parties, customers and others entering workplaces)

10

how any applicable risk assessments might have to be updated

11 the extent to which they will have to remain adaptable, because the science is surely to develop and change, as well as the availability of vaccines

 

Below, we highlight some of the issues employers will need to think about in the workplace:

  • can employees access the vaccine;
  • must employees take the vaccine but, also
  • what options are there if an employee refuses to participate in a vaccine programme?

When will a vaccine be accessible?

This is a rapidly developing area, which will likely progress at varying speeds in different countries, each of which will be subject to its own legal, social, economic and cultural constraints. These are early days, and large scale roll-out of the vaccine is in its infancy. Employers should therefore be watching developments closely, bearing in mind that each business’ stakeholders may have different expectations regarding the appropriate response to this situation. The ramifications for employers might well be connected to whether, within a particular jurisdiction, vaccination could become compulsory.

Could COVID-19 vaccination be compulsory in the UK?

In England and Wales, the Public Health (Control of Disease) Act 1984 (the Act) gives the government powers to prevent, control or mitigate the spread of an infection or contamination. However, the Act explicitly makes provision to prevent a person being required to undertake medical treatment, which would include vaccination.

The Coronavirus Act 2020 enabled Scotland and Northern Ireland to make health protection law under their devolved powers, ensuring that a similar prohibition on powers requiring mandatory medical treatment, including vaccination, was extended to both countries. Accordingly, in the UK there is currently no ability to make COVID-19 vaccination mandatory. Furthermore, at this time, it is our understanding that the UK Government has no plans to implement a compulsory COVID-19 vaccination programme.

In contrast, in other countries, such as the United States, certain states do have such powers and have indicated they are considering compulsory vaccination, once a vaccine has passed all necessary safety tests. No guidance has yet emerged from the US Equal Employment Opportunity Commission (the organisation responsible for enforcing federal anti-discrimination laws) regarding COVID-19 vaccine and mandating all employees to take any vaccine. Such practice would be in contrast with the flu vaccine, where the EEOC makes it clear that employers may not compel certain categories of employees to take the vaccine. Clearly the pandemic presents new and different challenges from the flu, but the prospect of a COVID-19 vaccine may also prove more divisive, needing a more nuanced approach.

There may be workplace-specific arguments to support vaccination as a precondition of work on health and safety grounds. For example, UK healthcare sector employers must ensure that healthcare workers, such as doctors and nursing staff, do not pose a risk of infection to patients, or vice versa. This includes an obligation to ensure such workers are vaccinated against common communicable infections and biological hazards, with the exposure risks associated with a person’s role determining which vaccinations are necessary. Employers should therefore anticipate a need to undertake specific risk assessments to evidence why a COVID vaccination is required, in contrast to all the other COVID-secure arrangements which should already be in place.

Of course, UK employers will want to start planning for a return to pre-COVID activities and productivity as soon as possible. Accordingly, they should now be thinking through how the availability of a vaccine may impact the workplace. There are also significant data protection issues and responsibilities for employers in this context, concerning special category data, which will need to be very carefully planned for and managed if potentially costly errors are to be avoided.

Employers should obviously be guided in their strategies by the legal position in their jurisdictions of operation and the extent to which these support mandatory vaccination.

What if an employee refuses to participate in a vaccine programme?

In the UK, where compulsory vaccination is not currently expected to be introduced by the government, employers would be ill-advised to demand that workers take the vaccine as a condition of continued employment. There are many complex reasons why an individual might legitimately be unable, or refuse, to be vaccinated and employers could risk litigation if they force the issue or penalise the individual. However, just as national governments will be actively promoting the safety and importance of widespread take-up of the vaccine, employers should consider their own stance on this matter and their internal communication strategies. This sensitive issue will require clear and precise communication, engagement with employees and/or their representatives and a facility for handling questions.

We understand that the introduction of immunity (i.e. COVID-19) passports is being contemplated by several countries, including the UK, Estonia, Italy, and Chile. Health certification for public health purposes is not without precedent – for example, it is already used in the management of yellow fever. If introduced, such passports would amount to a tool for recording and sharing the COVID-19 immune status of an individual, and could allow immune individuals to follow less stringent requirements around physical distancing and travel, including permitting them to return to work. However, it is not yet known what form such immunity passports might take or how they may be implemented. There will also be potential privacy and discrimination implications which need to be deliberated upon.

Refusing to allow those who have not taken the vaccine to attend work is arguably a different matter, but one which will still require careful consideration by employers. Generally, it is primarily the employer which takes the initiative in designing and implementing fit-for-purpose health and safety standards (in consultation with employees, trade unions and employee representatives), given that employers have a legal obligation to protect the health and safety of their workers. In all cases, the individual’s reasons for objection or failing to be vaccinated should be thought through. For example, employers may need to prepare for lower vaccine rates amongst younger workers, reflecting the Government’s proposed “risk-first” vaccine roll-out.

Bearing in mind that there will be those individuals who are unable, or reluctant, to be vaccinated, employers should explore all reasonable alternatives. So, for example, might regular testing of employees mitigate the health risks or other safety measures, such as a change in role, offer a potential alternative to vaccine? Different considerations will also likely apply to those who can work remotely, e.g. from home, where alternative safety issues would be applicable.

These issues are complex and fast developing. After all, only a few weeks ago, the UK Health Secretary, Matt Hancock, said that the country needed to come together to keep the infection levels down while we await the “cavalry that’s on the horizon” (in the shape of the science that will bring a vaccine). The vaccine is now here, it seems, but the next months for employers are likely to be turbulent and will require clear thought and flexibility.

This note is a generic briefing and is not a substitute for detailed legal advice on the specific circumstances employers are facing. Employers should therefore take legal advice.