Covid-19: Can employees be required by their employer to get a vaccination?
With no firm end in sight to the coronavirus pandemic, it continues to significantly impact employers and the workforce. Although the vaccine is not yet available to be purchased privately, employers may want employees to take the vaccine as soon as they become eligible, under the voluntary NHS programme. A high vaccination rate would minimise the number of employees having to self-isolate and minimise the risk of employees becoming infected by workplace transmission.
Can I require a vaccination?
Under the Health and Safety at Work Act 1974, employers have a duty to ensure the health and safety of their employees so far as is reasonably practicable. To this end, requiring employees to be vaccinated against the coronavirus may seem like a reasonable request, particularly if it is difficult to employ other safety measures such as social distancing. However, the government has not made the vaccination compulsory, and there are a number of reasons why an employee may refuse a vaccine, whether, for example, due to medical or religious reasons. This may put the employer in a difficult position, both legally and in terms of employee relations.
What if an employee refuses?
An employee’s refusal to comply with a reasonable management instruction may be grounds for disciplinary action including dismissal. An employer will have to carefully consider the individual circumstances of the employee and whether the refusal is justified. The nature of the workplace will also have to be appropriately risk-assessed and considered by the employer: it may not be reasonable to require an office worker to be vaccinated should remote working be possible; however, it may be reasonable to require vaccination of a healthcare worker, whose patients are particularly vulnerable.
At the present time it would seem likely that disciplinary action would be a risky option for the employer, but the risk will depend on the facts of the case and the disciplinary action taken.
One particular aspect is the Equality Act 2010. Employees should not receive any less favourable treatment, or be put to a detriment arising from not being vaccinated due to protected characteristics such as age, religion, philosophical belief (e.g. so-called ‘antivaxers’ could seek to argue that an objection to vaccination could be considered a ‘philosophical belief’), pregnancy etc… If, for example, a person had a medical condition that could affect their decision to take the vaccine, any less favourable treatment towards them could result in claims of discrimination on the grounds of disability. This, of course, is only one particular example, and there are other areas of vulnerability for the employer. It is therefore important that you take advice before proceeding.
For now, employers should act cautiously in the mandating of a Covid-19 vaccination for the workforce. In the majority of cases, they may have to make the best of regular testing (not without its own difficulties), protective measures such as screening and sanitising stations, temperature checks and effective compliance with face coverings and social distancing rules.
This advice is general in nature and will need to be tailored to any one particular situation. Should you find yourself in the situation above, please contact us at any stage for advice and assistance as appropriate.
Motor Industry Legal Services t/a MILS
Devon EX6 7RH
Tel: 0207 244 6790