Legal tips for managing staff COVID-19 vaccinations

Varying uptake of the COVID-19 vaccination in some healthcare settings has raised concerns about what practices should do if staff members refuse or are unable to have the vaccination.

Employment lawyer James Howell considers the workplace issues that may arise regarding vaccination against COVID-19, including whether employers can require mandatory vaccination, the issues to consider if they do, and what the alternative options are.

Workplace requirement for vaccination

The Acas guidance advises that it is best for employers to support staff to be vaccinated without making it a requirement. Employers can encourage staff to do so by, for example, offering paid time off to attend vaccination appointments.

In the absence of it becoming a legal requirement, an employer cannot force an employee to be vaccinated without their consent. There are many reasons why workers may choose not to take a vaccine. These could include medical advice, religious or philosophical belief, pregnancy, disability, existing medication, previous exposure, wanting to retain autonomy over their medical choices or wanting to wait for more evidence of safety.

However, this does not mean that an employer is necessarily breaking the law if they insist that an employee is vaccinated, in order to work for them. Where the risk of infection to others outweighs the contravention of freedom of choice on vaccination, an employer may be justified in mandating this approach. This is more likely to be justified in the healthcare sector, where the risk of spreading infection to vulnerable people is higher.

Where it is objectively reasonable to require vaccination before returning to work, an employer may lawfully refuse to allow a worker to work. If the employee has legitimate reasons for rejecting the offer of a vaccine, they may face suspension on medical grounds. If they do not, the suspension could be connected with disciplinary action for failing to follow a reasonable management instruction. 

Restricting an employee to alternative duties rather than suspension is also an option in these circumstances. This is the objectively more sensible and reasonable approach, provided it is operationally possible.  

Legal considerations if making it mandatory

An employer considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should consider the following:

• Vaccination is not suitable for everyone. Requiring an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal.
• There are potential reasons where a mandatory requirement to be vaccinated could be indirectly discriminatory against certain protected characteristics and a breach of Article 8 of the European Convention on Human Rights.
• A vaccination requirement may be difficult to justify on health and safety grounds. Although vaccination reduces the chance of the vaccinated individual becoming ill, the extent to which vaccination reduces transmission is still under review. Furthermore, it is not yet known how long protection from vaccination will last. The current advice is clear that vaccination is not a substitute for workplace COVID-secure measures, which must continue to be complied with.
• Imposing a mandatory vacation requirement could result in negative publicity for the employer.
• There is a very small risk that vaccination could have long-term adverse side effects for some individuals. A cautious employer may also be concerned about the risk of an employee having an adverse reaction to the vaccine. An employee who was compelled to obtain the vaccine and who suffers an adverse reaction, may attempt to bring personal injury proceedings against the employer.
• There are data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy, and retaining that data.

Paying staff during absence due to lack of vaccination  

Statutory sick pay remains available, although it does not extend to those who are fit to work but are unable to because their employer requires them to have been vaccinated. 

The Coronavirus Job Retention Scheme remains operational until the end of September 2021. This is unlikely to be of assistance beyond then, when vaccination becomes widely available for the working population and such requests to be vaccinated become feasible.  

If the employee is suspended on medical grounds, as their presence creates a health and safety risk, they are entitled to be paid in full for up to a maximum of 26 weeks.  

Suspension for failing to comply with a reasonable management instruction also requires the employee to be paid in full until the disciplinary procedure concludes. Such action should not be taken as a disciplinary sanction, but to ensure the safety of others at work. In extreme circumstances, an employer could consider the employee’s absence unauthorised and not pay them at all. 

It remains to be seen whether the government will introduce legislation or guidance on these issues. 

Alternative options 

Although requiring vaccination may be lawful in certain circumstances, it isn’t necessarily the best approach. The practice will want to consider the precedent it wants to set, the risks of imposing a blanket policy and the impact on reputation and staff morale.  

Practices continue to be required to risk assess their workplace and take steps to ensure that it is COVID-19 secure. Measures include ensuring social distancing and mandating face masks, among others. Keeping these restrictions in place could represent greater safety to the workforce than removing these measures in favour of mandatory vaccination.  

An argument that compulsory vaccination is proportionate to keep people safe may be undermined by both the medical science and the alternatives available to the employer to ensure the same, or greater, level of safety. 

Unanswered questions  

There remain some unknowns in relation to the levels of protection against severe illness and transmission provided by the various vaccines. 

When a practice implements a policy mandating a vaccine, it will need to think very carefully about the information it uses for justification. Most pertinently, if the vaccines do not reduce or prevent transmission of the virus, it is unlikely to be persuasive to suggest that a mandatory vaccine is proportionate in order to keep others safe. 

Conclusion 

While a blanket requirement for vaccination is possible for employers to implement, there are many circumstances which give rise to legitimate challenge and create genuine risks.

There need to be tolerances and flexibility built into this approach and the starting point of any advice on this issue would be to encourage vaccination, educate on the benefits of vaccination, and support staff to access the vaccine, but not to make it an absolute requirement.

James Howell is an employment lawyer and MD of MS Rubric, partner law firm of Moore Scarrott Healthcare, nationwide specialist medical accountants