At the time of writing, the government has announced that every adult will be offered the COVID-19 vaccine by 31 July 2021. The swift progress of administering vaccines has led to topical discussion about whether employers can force employees to receive the vaccine. Recent headlines of “no jab no job” have increased this debate.

What are the concerns that employers and employees have regarding the COVID-19 vaccine?

This blog aims to address the concerns that both employers and employees may have over the vaccine and the employment law implications.

Is it a legal requirement for people to get the COVID-19 vaccine?

To date, the government has not legislated for the COVID-19 vaccine to be mandatory for anyone. The government guidelines on vaccinations say that individuals must be given enough information to enable them to make a decision before they can give consent.

By law, the Public Health (Control of Disease) Act 1984 gives the government the power to prevent and control an infection. However, the legislation specifically prevents a person from being required to undertake medical treatments such as vaccinations. Accordingly, further primary legislation would need to be introduced in order to legally mandate a COVID-19 vaccination.

This is a topical area and, whilst no conclusions have been reached, a government consultation has recently been launched to consider whether vaccinations should be made compulsory for staff in older adult care homes. The consultation closes on 14 May 2021. There have also been reports in mid April indicating that some London NHS Trusts are preparing to make vaccination compulsory for workers, albeit this is unconfirmed.

What does this mean for employers?

The distribution of the vaccine will likely come as a relief for businesses and employers. There is now a light at the end of the tunnel that normal working operations can slowly resume and more employees will be able to return to the workplace.

Employers can certainly encourage their staff to receive the vaccine and Acas has released guidance on getting the vaccination for work which contains useful guidance. This encourages employers to support staff by discussing the benefits of vaccination. It also offers suggestions for practical support, for example, by offering paid time off to attend vaccination appointments or paying staff their usual rate of pay if they’re off sick with vaccine side effects.

However, not every worker will want to be vaccinated and this is a controversial topic that many employers are navigating. The government has identified that this is a “complex” topic and there are a variety of reasons as to why an employee may be reluctant to receive the vaccine, which will need to be reviewed on a case by case basis.

A key question that is arising is whether it is ethical and legal for employers to request staff to be vaccinated before they return to the workplace, particularly when some will refuse for religious, philosophical or health care reasons.

As a starting point, in the absence of vaccination becoming a legal requirement, an employer cannot currently force an employee to be vaccinated without their consent.

An employer who requires employees to receive a vaccination could potentially be open to the risk of a discrimination claim on the grounds of disability, age, religion or belief. In addition, if an employer were to dismiss an employee for the reason of refusing to take a vaccine, they may be opening themselves up to an unfair dismissal claim, assuming that the employee has at least 2 years of service.

Can an employer dismiss an employee who refuses to take the vaccination?

An employer may dismiss an employee who refuses to comply with a reasonable management request. Therefore, if it is considered that taking the vaccine is a reasonable management request, an employee may be able to be dismissed for refusing to comply.

This will require careful analysis on a case by case basis and will depend on the specific circumstances. If an employee is refusing to take a vaccination and is also refusing to come into the workplace, an employer should firstly consider alternatives such as change of role, regular testing or permanently working from home. Where contact with customers, clients or other employees is necessary, steps may need to be taken when employees are refusing to come into work.

However, if an employee is refusing to take the vaccine for legitimate reasons and is still happy to come into work, an employer would be ill-advised to dismiss them. An employer should thoroughly consider an individual’s reasons for refusing to take the vaccine before making any decisions.

Whether an employee can be dismissed for this reason would depend on whether the employee’s refusal to comply with the request is reasonable or not. Whether this is a reasonable request will involve a consideration of where the employee works. For example, UK healthcare employers must ensure that their employees do not present a risk of infection to patients, so may have a stronger defence to an unfair dismissal claim. However, as mentioned above, employers will have to be aware of the possibility of opening themselves to the risk of discrimination or unfair dismissal claims by insisting on their staff having a vaccine. This could also give rise to human rights issues.

What does this mean for employees that are ‘extremely clinically vulnerable’?

People at high risk (clinically extremely vulnerable) from Coronavirus are no longer advised to stay at home and “shield”.

The government has now published the COVID-19 Response – Spring 2021, which sets out the roadmap out of the current lockdown for England. Subject to the government’s assessment of the current data against the four tests contained in the roadmap, this is resulting in a gradual lifting of the restrictions. The risk therefore lies with the situation when an ‘extremely clinically vulnerable’ person refuses to take the vaccine but there are no longer protective restrictions in place. If ‘extremely clinically vulnerable’ individuals refuse to take the vaccine this is going to be difficult for employers to manage, particularly if the individual is also refusing to go to work.

There are a range of options available to employers where high-risk employees are not comfortable with going to work. This includes use of the furlough scheme (which has been extended to the end of September 2021), suspending on full pay, allowing employees to take annual or unpaid leave and sick leave. However, as time goes on these options may be less commercially viable, in particular when businesses return to their normal workload.

Employers should also be aware that employees have statutory rights meaning that they have protection from any detriment or dismissal when they have decided not to return to work, because there are circumstances of danger where the employee reasonably believes this danger is serious or imminent. The belief must be genuine and reasonable; therefore, once the vaccine has been fully introduced, the belief will likely become less reasonable.

As stated above, an employer may consider taking disciplinary action against an employee who refuses to take a vaccine and also refuses to return to work, on the basis that it is a breach of an employer’s reasonable instruction. In order to proceed, employers should take all appropriate steps to make their workplace COVID secure. This option may be more appropriate where employees who are not clinically vulnerable are refusing to return to work as these employees are, arguably, less likely to prove a reasonable belief in an ongoing and serious imminent danger.

Employers should consult with their employees to understand their concerns and discuss how risks will be managed. Employers should also carry out a proper risk assessment and take the appropriate steps to mitigate these risks. For further information, please see our blog ‘Changes to “shielding” – the implications for employers’.

What about pregnant or breastfeeding employees?

On 16 April 2021, the Joint Committee on Vaccination and Immunisation (JCVI)  issued a press release for pregnant women advising that pregnant women should be offered the vaccine at the same time as the rest of the population, based on their age and clinical risk group. Based on the tested data available, the JCVI advise that it is preferable that pregnant women are offered the Pfizer-BioNTech and Moderna vaccines where available.

There is still no data on the safety of COVID-19 vaccines for breastfeeding women (or their child). However, the government does not consider COVID-19 vaccines a risk to the breastfeeding infant and the JCVI has recommended that breastfeeding women can receive the vaccine. This is in line with recommendations in the US and from the World Health Organisation. There is no specific guidance for women trying to conceive.

Despite this new guidance, it is likely that some pregnant employees will have concerns about receiving the vaccine and employers should therefore proceed with caution. Employers should continue to consider alternative arrangements or adjustments that may need to be made on a case by case basis. For instance, this could include allowing a pregnant employee to work from home. Employers should also ensure that they carry out a specific risk assessment and helpful further guidance can be found on the Health and Safety Executive website and the government’s website offering guidance for women of childbearing age, currently pregnant or breastfeeding.

What are vaccination immunity passports?

There is much discussion around the possible introduction of immunity passports in several countries including the UK and Italy. The government has announced a further review of the situation over coming months and has identified that vaccine passports are more likely to be required internationally. These passports are a potential tool for recording the immune status of an individual. Whilst it is speculation at present, they could take the form of a wristband, mobile phone application or certificate and may allow individuals to follow less onerous requirements around social distancing and travel.

Some airlines have already indicated that they will require anyone taking a flight to have been vaccinated, which indicates that other service providers may take a similar view. The CEO of Heathrow Airport has welcomed the introduction of an internationally recognised immunity passport. If vaccination immunity passports start to be enforced in order to visit certain establishments such as pubs and offices, this create a further reason for employers to reasonably require employees to be immunised. This will have particular relevance if employees need to visit certain places to carry out their role and duties.

However, there are concerns that immunity passports could mislead individuals as to the complexity of their immune status. In particular, it is not clear how long the immunity will last for and we do not have certainty over how effective it is. Looking forward, if vaccination immunity passports are introduced, this could present serious issues for employers to review and consider.

If you have any further questions relating to the effect of the vaccine on employment law, please contact a member of the Employment team.

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