How can HR create a workable and legal vaccine policy?

While ‘wait and see’ might seem an attractive option, HR does need to come up with a viable vaccine policy that works for everyone and alienates no one, suggests Dan Cave.

Vaccines, unsurprisingly, have been a headline-making news item so far in 2022.

The highest-profile example is Novak Djokovic’s thwarted attempts to compete in the Australian Open. A row which saw the best male tennis player in the world, who is currently unvaccinated, arrive in Melbourne just after the start of the year, believing he had a medical exemption to Australia’s most widely applied entry rules – having at least two doses of most vaccines – before having his visa cancelled.

As the Guardian described, it has led to mistrust and resentment with Djokovic saying he was confused by the process and guidelines. It’s also led to brand damage for all involved.

It’s the subsequent recriminations – including rumours Djokovic was planning to sue the Australian government for £3m over ‘ill treatment’ – that are getting HR leaders and legal experts thinking about how formulating and applying vaccine policies may result in reputational damage and legal issues if they also get it wrong.

The post-Covid workplace:

What Covid means for unvaccinated workers

What does ‘living with Covid’ mean for business?

Balancing safety guidance and privacy law in vaccination status

Employment tribunal rules on side of care home against unvaccinated employee

Simon Whitehead, partner and employment law specialist at law firm Brabners, argues HR practitioners should be thinking about whether a vaccine policy is appropriate to organisational aims.

He says: “[Some businesses’] vaccination decisions appear to be motivated by economic considerations, and by the need to maintain the number of employees in work, rather than the public health requirements… [here] businesses should proceed with caution.

“In the current candidate-friendly job market, any employees unhappy with their company’s approach may well decide to vote with their feet and leave the business.”

Ravi Dasan, consultant at University College Hospital and GP at Harley Street, agrees that employers need to think about what they’re trying to achieve with vaccine policies and consider alternatives approaches to workforce health.

He says: “The vaccine doesn’t stop people catching Covid, it just reduces the impact of the symptoms – resulting in a bad cold, but rarely in hospitalisation.

“Companies do not force the flu vaccination on employees... as a result, I’d suggest encouraging people to have the vaccine, and educate them by sharing the ‘real facts’ rather than misinformation being circulated.”

Considering alternatives to strict vaccine policies might also help appease large parts of the workforce who dislike the idea of mandates.

Indeed, 2021 Qualtrics research into US workers shows that over four in 10 would consider quitting their role if vaccines were mandated by their employer.

Yet, HR seems to be barrelling forward with vaccine policy plans. Flex data found that 70% of HR directors plan to make staff vaccinations an employment requirement, perhaps driven by the more-than-half of the workforce who, according to Infogrid stats, think unvaccinated colleagues are the biggest workplace issue.

To keep all groups with different views on vaccine policies appeased, Grace Mole, senior people partner at HR tech firm Culture Amp, believes employers should engage with staff on why they might hold certain beliefs as well as considering rolling out vaccine education programmes and countering misinformation.

She says: “This demands a carefully planned communications programme, including one-to-one discussions with the people management team for employees who may be concerned about returning to the office or mixing with colleagues.

“The Covid vaccine is an emotional subject for many people. We need to treat our employees as intelligent and reasonably wary individuals who ultimately want to do the right thing and need coordinated support to do so.”

This, Mole argues, is in order to circumvent potential vaccine policy reputation issues. It also involves, in her view, ignoring the temptation of “no-nonsense work policies along the lines of ‘no jab, no’ job’”.

This might be to avoid the business, brand and potential legal wrangles that Morrisons, Ikea, Ocado, Next and The AA currently find themselves facing as a result of their blanket policies.

All have similar vaccine rules, which cut sick pay for unjabbed staff who have to self-isolate, and are facing social media calls for boycotts – #boycottmorrisons has trended on Twitter – union criticism and a debate in parliament on whether employers should be prohibited from requiring staff to be vaccinated.

Regardless of whether this criticism has a tangible business impact, George Miller, employment law specialist at Richard Nelson, explains that HR still needs consider the potential for data and discrimination legal issues.

He says: “Employers will also need to tell their employees that they are collecting this [vaccination status] data, and how it will be used. The data must then be kept secure, and employees must be able to exercise their rights over this data.”

However, if HR is collecting anonymised data in order to see if they might then want to roll out a vaccine policy, GDPR does not apply.

Yet asking for data on vaccine status in any case makes Vicki Field, HR director at London Doctors Clinic and independent HR consultant, “very twitchy” and she thinks practitioners should keep an eye on whether any employment tribunals rule on the high-profile cases of vaccine policies before making their own moves.

She says: “I hope that the bulk of people having the vaccination are enough to mitigate the effects of Covid [at work].”

In the interim, she recommends that HR educate itself, looking at whether working structures really require a vaccine policy, understanding how difficult it can be to get vaccine data from incumbent staff, and being wary of unfair dismissal and discrimination cases.

The discrimination point is what Simon Bloch, employment law partner at JMW Solicitors, thinks employers should focus on most.

He says: “In some cases, there may be a reason that an employee cannot be vaccinated, whether on medical, religious or philosophical grounds. Failing to take that into account could constitute indirect discrimination.”

And despite increased focus on vaccine policies, in part because the April date mandating healthcare workers to be doubled jabbed moves closer, Yashmi Pujara, chief HR officer at Cactus Communications believes that HR need not consider them at all as the pandemic has proved alternate ways of working exist.

She says: “There is no need for a vaccine mandate or any other strict enforcement measures. Our remote-first policy puts us in a privileged position, allowing freedom of choice with regard to vaccines for every employee.”

In spite of the remote option for some, it seems that many in HR will be waiting to see if one of the high-profile blanket policy roll-outs results in an unfavourable outcome for the employer before proceeding.

In the meantime, it seems that many in HR are focusing on workable alternatives, being mindful of discrimination and data issues and encouraging voluntary vaccine take up among the hesitant.

HR is also practising good communication and better workforce engagement with those who might not initially want the vaccine rather than being punitive.


This piece appears in the January/February 2021 print issue. Subscribe today to have all our latest articles delivered right to your desk.