COVID-19 vaccines and the workplace: the legal issues

What are the potential legal issues around COVID-19 vaccines for employees? Senior employment solicitor Jennifer Smith, who is a Partner at JMW Solicitors LLP, outlines what employers and managers need to be aware of around encouraging vaccines and situations where employees may refuse to get vaccinated.

As the Government’s vaccination programme continues to be implemented across the UK, employers should be aware of the implications of the vaccine rollout and the challenges that may arise in the workplace as a result.

The issues surrounding coronavirus in the workplace are complex and fast developing, which can result in uncertainty for employers. The next few months will require thorough plans combined with flexibility, particularly as employers continue to develop and adapt COVID secure workplaces.

This article deals with some key questions and topics in light of the vaccination programme and current position in the UK.

Can employers make COVID-19 vaccination mandatory?

Currently, the UK Government has no legal power to compel vaccinations and has confirmed it will not embark on a mandatory vaccination programme. Similarly, there is no right for employers to make vaccinations mandatory for their employees. Any mandatory provisions are likely to be high risk and could expose the employer to litigation.

Vaccines in the care sector

This area is particularly complex in the care sector. Where an employee is in close contact with extremely vulnerable individuals, an employer could potentially take disciplinary action where that employee unreasonably refuses a vaccination. For instance, one of the UK’s largest care homes, Care UK, has introduced a “no jab no job” policy for new starters.

In the event of any claims brought by employees or applicants on the back of such policies or disciplinary processes, employment tribunals would need to weigh the employer’s health and safety obligations against employee’s individual rights, in particular the right not to be discriminated against in the workplace.

Vaccines and business travel

Another area of complexity is regarding vaccinations and business travel. The Government has not implemented a policy of vaccine passports currently, but this is something to potentially look out for. Businesses will need to consider the discrimination risks discussed below and weigh this against the business need for employees to travel when considering their approach to this issue.

Encouraging employee vaccinations

The Government are actively promoting the safety and importance of the vaccine and employers should consider their own internal communication strategies regarding workplace vaccinations. The less risky approach for employers to take would be to promote the take up of the COVID vaccine within its workforce.

Communications should be factual and clear and employers should also consider setting up a facility for answering questions employees may have. For example, employers may invite healthcare practitioners to answer employees’ questions and deal with any concerns.

Situations where employees may refuse to have a vaccine

There are a number of complex reasons why an individual might be unable, or refuse to be vaccinated.

Employers could risk litigation if they penalise the individual for refusing a vaccination and they should consider all reasonable alternatives. Different considerations will apply to employees who are able to work from home and those who cannot. However, any considerations might include regular testing of employees, which could mitigate the health risks. Other safety measures, such as a change in role, might offer an alternative to vaccination.

COVID-19 vaccines and discrimination law

Under the Equality Act 2010, employees are protected from discrimination on nine grounds including age, religion and belief, and disability.

If an employer requests that employees get vaccinated, there is a risk that employees may raise discrimination complaints as a result of being asked, for example, where it is against their religious beliefs. The value of any claims on this basis would be low where no other action is taken – however, if the individual were harassed on the basis of their answer or victimised, it would be a very different story from a compensation point of view.

The greater risk is where an employee refuses to take the vaccine on grounds which are protected under the Equality Act 2010 and is penalised as a result. In this case, the employee could bring discrimination claims against their employer. Any blanket requirement imposed on employees to be vaccinated therefore may expose the employer to discrimination litigation.

For example, in situations where employees who have not received the vaccine are not permitted to return to the workplace but their vaccinated colleagues are, such employees could argue they are being treated differently to their work colleagues because of a protected characteristic. Any policy stating employment vacancies would only be offered to vaccinated applications would likely be indirectly discriminatory against younger candidates, given older individuals are more likely to have received the vaccine earlier.

The risks in relation to treating employees, or groups of employees, differently should be assessed at the time in light of the current prevailing public health guidance.

Vaccinations and COVID secure workplaces

Employers are obliged to carry out a risk assessment to identify health and safety risks to employees in their place of work and to take action to remove or control any risks identified.

Workplace risk assessments should be updated to take into account the vaccination programme, particularly as the vaccine becomes more widely available. Results of the risk assessment should be communicated to employees and employers should be encouraging their employees to be vaccinated to reduce health and safety risks.

Employers should also plan for a scenario where some but not all of their workforce are vaccinated and update their approach accordingly. For example, there could be situations where employees refuse to work with non-vaccinated colleagues if they are unable to be vaccinated themselves. Employers would need to consider the reasonableness of any action and decide whether any proportionate steps could be taken to reduce the health and safety risk, such as changing employees’ workstations or duties.

Vaccination policies

In light of the above, employers may consider putting in place voluntary vaccination policies. The starting point for any such policies should be the health and safety requirements of the business and any COVID secure measures currently in place.

Any vaccination policies are likely to include the employer’s approach to vaccination in the workplace and reasons for that approach, the sets of workers or otherwise the policy will apply to, steps the employer will take to encourage vaccinations, and a section on data protection and privacy laws. We recommend taking legal advice if your organisation is considering putting in place a vaccination policy.

Next steps for employers

• Keep informed of Government guidance and public health updates in this area as the vaccination programme continues to be rolled out
• Continue to take a flexible approach in order to maintain a COVID secure workplace for all staff
• Maintain the COVID secure workplace arrangements and considerations and communicate to the workforce that these measures will need to be maintained for all staff (whether vaccinated or not) going forwards for some time

More resources for SMEs

Webinar: COVID-19 vaccines: can you make them mandatory for employees?

Article: Employers' legal responsibilities in managing a return to the office

Article: How is work set to change after coronavirus?