Get vaccinated or don’t come back: Can employers compel employees to get vaccinated against COVID-19?
The encouraging news that COVID-19 vaccines have been highly effective in advanced trials and a roll-out programme for high-risk groups may start this side of Christmas offers light at the end of the tunnel for a return to near normality in 2021.
While the vaccines await regulatory approval and the government grapples with drawing up plans on how it will get the population vaccinated, a survey by Kantar suggested that the vaccines face “an increasingly hesitant public," with only 43% of UK respondents saying they would “definitely” take a vaccine for the virus.
So, what does this mean for employers who are keen to open up their premises and have their employees return once the lockdown restrictions are lifted?
Some may be considering whether to require employees to get vaccinated before they will be allowed to return to the workplace, thereby eliminating (to the extent possible), the risk of infection at work. Can they do this?
The government’s position
The government has so far stated that it is not planning to make vaccination against COVID-19 mandatory but has not ruled out the possibility that it might.
The law currently prevents the government making vaccination mandatory. Recent extension of the existing law on powers to prevent, control or mitigate the spread of contamination and infection covering Scotland and Northern Ireland did not change this position.
Although the government may change the law to compel people to get vaccinated, such a move is likely to attract much criticism and, possibly, legal challenge under human rights laws (in particular under Article 8 of the European Convention on Human Rights – right to respect for private and family life).
It is difficult to see how employers could compel their employees to get vaccinated before returning to work if the government does not make it mandatory, particularly if the employment does not involve work with vulnerable people.
Parallels with the flu vaccine
Whilst many employers offer to pay for their employees’ annual flu vaccination as a benefit, to insist that employees are vaccinated would put them at risk of legal claims. The same will be the case with requiring employees to be vaccinated against COVID-19.
An employer which attempts to compel vaccination, particularly in cases where there is no valid reason for such a requirement, will risk exposure to unfair dismissal claims.
Employees subject to such a requirement may (if they have at least two years’ continuous service) resign and claim constructive unfair dismissal on the basis that their employer is giving them unreasonable instructions.
There could be challenges on human rights grounds, as mentioned above, and those who will not be vaccinated because of a protected characteristic (such as a disability or particular religion) may be able to bring discrimination claims.
In reality, employers will have little control over access to COVID-19 vaccines and we may have to wait quite some time for them to become widely available. When the government does obtain the vaccines it has ordered, key workers, older employees and those with conditions that put them at greater risk are likely to be first in the queue to be vaccinated.
Implications for return to work
When determining who to bring back to the office most companies are likely to be led by commercial need, but it is possible that certain companies, particularly those that have not been able to adapt their workplaces to limit the risk of the spread of infection, will be inclined to bring vaccinated employees back first.
Companies should tread carefully in doing so given the risk of claims. Also, if older employees are permitted to return (since they are more likely to have been vaccinated), age discrimination claims could be on the cards.
The degree to which employers will be able to insist that their employees be vaccinated against COVID-19 before returning to the workplace (or as a condition of employment) will ultimately depend on the government’s position, medical guidance and the position of the law at the relevant time.
As a general rule, it is advisable for employers to avoid a blanket approach. Instead, they are best advised to share information about available COVID-19 vaccines with their employees and, possibly, issue a recommendation that they get vaccinated, but go no further.
This coupled with workplace testing, regular temperature checks (i.e. less intrusive measures than a vaccine), social distancing and compliance with the Health & Safety Executive’s guidance on creating a safe environment may be as far as employers can reasonably go to limit risk of infection at work.
Nikola Southern, employment partner, Kingsley Napley LLP