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Simon Tovey in our Employment team has come up with a comprehensive list of questions all employers should ask before introducing a vaccine mandate. It's a long read but well worth it if you're considering requiring your employees to have the COVID vaccine, taking into account risks to be aware of and consider in advance.
As Covid vaccines become more widely available outside of those in the most vulnerable categories, and should be available to all by the end of the summer, increasingly there has been discussion about the circumstances in which companies might decide to impose a requirement upon staff to be vaccinated as a condition of (continued) employment.
Parts of the travel industry may have little choice given that certain staff have to be able to gain entry to other countries. But from a UK domestic perspective, this is a very difficult and fact sensitive issue.
In the case of care home and hospital staff, there are already indications that the Government might impose a legal requirement – but at this stage have not said how they intend to do this, or how any legislation would attempt to deal with the legal risks any employer would face if required to comply. But that’s an issue for another day.
Whilst it is easy to make simplistic assumptions about how vaccines work and what they can and cannot achieve, employers and their advisers need to understand not only the basic science of vaccination, but also appreciate that this is still a very fluid area. The consensus view of the science around Covid, particularly where transmission is concerned, is still developing. At the time of writing concerns have also been raised, particularly within Europe and most recently Canada, about vaccine side effects. By the time that everyone in the UK has the ability to be vaccinated, the position on both will no doubt have changed again.
So, instead of trying to give a definitive answer at this stage, I have formulated a list of six practical questions that any business should be asking itself – and asking its legal advisers – before making any decisions about vaccination mandates.
1. Why do you want to introduce a vaccination requirement? What are your aims and why is this necessary to achieve them?
If your business has been operating mainly as normal throughout the last 12 months when you were allowed to open, without suffering any major Covid outbreaks, why do you need to mandate vaccines?
It’s not enough to just say “because we think vaccines are a good idea” or “it might make everyone safer”, or even “because it will make us look good to our customers / staff”. Requiring staff to undergo a medical procedure – against the threat of either not being employed or being dismissed if they refuse - is not a step to be taken lightly. It is why doctors are required to ensure free and informed consent for all medical treatment.
Anyone introducing a vaccination mandate should expect to be challenged on it at considerable length in any court or tribunal claims which will inevitably follow. You will need to:
(a) Have thought about the issue carefully prior to introducing it and, ideally, document your considerations;
(b) Have a strong justification for imposing the requirement; and
(c) Be able to show that you considered alternatives but that vaccination was a necessary step to achieve the aim or issue that you sought to address.
2. How will you justify dismissing an employee for refusing to be vaccinated?
The primary purpose of Covid vaccines are to protect the individual being vaccinated from serious illness or death if they were to become infected. Studies so far have shown that the vaccines are broadly effective in achieving that aim from a relatively short period after vaccination.
But what if an employee does not want to be vaccinated? Their reasons for refusing are likely to vary dramatically. Whilst the popular narrative is to accuse all such people of being “anti-vaxxers”, with all of the negative connotations that phrase entails, it is important to understand that reasons for not wanting to be vaccinated will vary considerably. Most will not be easy to dismiss.
Employers need to understand the risks on both sides of the equation. The average age of a Covid death is 83 years. For most of the normal working age population who do not have any serious pre-existing medical conditions, the survival rate is around 99.8% (higher for younger groups ). An employee may perfectly legitimately not want to undergo a medical procedure – which like all medical procedures comes with its own risks – when they face such a small risk of becoming seriously ill from the virus.
The main argument seems to be: “to protect others”. Simple, right? Except this very quickly becomes a circular argument: if everyone who wants to be vaccinated gets vaccinated, then they are effectively protected so far as possible from becoming seriously ill from Covid. Based on indications of vaccine take up in the UK that is likely to be around 95% of the population by the end of the year.
So who would a vaccine mandate be protecting? Answer: bar a few rare exceptions, the small number of staff who don’t want to be vaccinated. And they don’t want to be protected in that way. So why would their employer try to coerce them or dismiss for not doing so?
That’s even before you consider the vexed question of whether vaccines have any discernible impact on transmission, beyond that which relates solely to a reduction in symptoms/infection. If they don’t, then what tangible benefit does a vaccination requirement have in the work context over, say, simply requiring any member of staff who has symptoms to stay at home (which they are currently required to do by law in any event), and the cleaning/ventilation/etc. measures that you are already taking?
3. Will you require anyone who has had Covid and recovered to also be vaccinated? What about those who have antibodies or other evidence of pre-existing immunity?
Before March 2020, many scientists would have said that if someone is infected with this type of virus and recovers, they will have natural immunity against serious illness from the same virus for a material period of time (beyond the initial antibody response). It’s why sometimes you only get a few sniffles when you get a cold, instead of being in bed for a week. Natural immunity was also said to be broad enough to cover other similar viruses. At a very basic level, broad / cross immunity was the basis for the development of some of the first vaccines (e.g. smallpox).
However, where Covid is concerned you will also have seen statements that natural immunity is not as good as vaccine induced immunity, and/or that vaccines have a broader reach. (At one point the WHO even updated their definition of herd immunity to only refer to that which was vaccine induced, before changing it back to the more traditional definition.) At the same time we are being told that new variants may escape the vaccine, that we need to ban international travel to avoid this; and that booster injections may be needed to deal with variants more effectively. Draw your own conclusions.
It is worth noting that the system of Covid certification introduced in Israel (which seems to be the model the UK Government are watching closely) currently treats anyone who has had Covid and recovered the same as someone who has been vaccinated. It is unclear whether the UK Government will take the same approach. At the time of writing it looks like the UK Covid certification scheme is most likely to rely on: (i) vaccination (ii) negative tests, and possibly (iii) the presence of antibodies, but not any wider concept of natural immunity (such as T-cells, but tests for those are apparently on the way). Again, watch this space.
In any case, you will need to be prepared to answer questions from your staff why getting Covid (and recovering) isn’t good enough to confer immunity; or why they can’t just agree to regular testing instead of a vaccine. Or why if a test is good enough to get them into a pub, restaurant, stadium or nightclub, why it isn’t good enough to get them into the office or factory.
4. Which vaccine will you require/allow staff to have? Will you also require them to have all of the booster injections? If so, how will you monitor and enforce this? Who’s going to pay for it all?
This is one my favourite ones. It’s “just” a simple vaccination, right? Stop being selfish and take one for the team. Or is there more to it?
There are many different vaccines currently in use and many more in development. They work in a number of different ways. For most employers a “UK Approved” vaccine would almost certainly be fine. However, if your employees travel and work abroad, it may make a difference which vaccine they have as to whether they can even get into their country of destination. Some countries have only approved some vaccines for use and not others. So if that employee needs to travel to specific locations they may need a specific kind / brand of vaccine.
What about the booster injections: either those which may be required to deal with new “variants” if the vaccines don’t work against them, or to “renew” the standard vaccine if studies show that it only confers immunity for so long. Presumably an employer with a vaccine mandate will also need to have a booster mandate too. And that means that you will need to keep track of a) when new booster jabs become available; and b) who has had and needs to have their booster injection. That raises yet more practical problems, plus more data protection considerations.
It also means that introducing a vaccine mandate for new employees only isn’t very practical – or at least it does not offer the benefits that some might suggest. Sooner or later you will be faced with an employee with unfair dismissal rights refusing to be injected. So best to face up to that issue now.
Currently vaccinations are being provided by the Government free of charge. However, that is helped by the fact that the Government struck a deal with vaccine manufacturers to obtain the vaccines at cost. If reports are true, that arrangement may come to an end later this year. So booster jabs and repeat vaccinations (if required) could well come at a cost. Who’s going to pay?
5. What types and levels of risk are you taking / prepared to take on discrimination claims?
Vaccine mandates potentially give rise to potential claims on the grounds of a number of different protected characteristics: age, race, sex, pregnancy, religion and belief, and disability could all be relevant. And that’s before you factor in the human rights implications, such as the impact of articles 8 (privacy) and 14 (non-discrimination), and some of the continuing EU law-derived obligations.
The extent to which you might be able to successfully defend those claims is likely to depend upon how good your justification for introducing a vaccine requirement is, and what exceptions (if any) you are prepared to grant and for how long.
For example, right now a policy requiring vaccination would inevitably put younger people at a disadvantage as they are unable to be vaccinated for several months. In the UK it currently appears that by the end of the summer anyone who wants to be vaccinated (apart from children) will be able to do so. However, in other jurisdictions that is likely to take considerably longer. Requiring staff who are based abroad to have a vaccine might put staff of particular nationalities at a disadvantage if those countries do not have the same level of access to vaccines. People with certain disabilities may not be able to be vaccinated. Same with pregnant women. And that’s before you consider the many different religion and belief arguments. The list goes on.
At the very least you need to take a view on:
(a) The date when any vaccine requirement will come into effect;
(b) What, if anything, the business can or should do in order to assist certain groups to obtain access to available vaccines; and
(c) What exceptions you are likely to make to the policy, if any, and in what circumstances.
6. If you introduce a vaccine requirement and an employee gets seriously ill or dies following an adverse reaction to the vaccine, might you be held liable?
Much of the commentary on vaccine mandates, including that emanating from the Government, has suggested that they might be required as part of the employer’s duties under health and safety legislation; and that employees have to agree to vaccination as part of their corresponding obligation. That is very debatable, but let’s assume for now that it’s true.
There is a potential sting in the tail to that line of argument which rarely, if ever, gets mentioned: if an employee is required to have a vaccine as a condition of employment, is the employer assuming responsibility for any negative health consequences which may follow?
Taking that slightly further:
- If preventing Covid infection is part of an employer’s health and safety obligations, is the employer legally responsible for a claim if an employee gets Covid at work?
- If so, what about other common viruses or infections? Should employers be mandating the flu vaccine? Or a much wider panel of vaccinations?
Some may think that is exaggerating. However, the International Chamber of Shipping has recently issued guidance in relation to seafarers confirming that if employers mandate Covid vaccinations for their employees they will be liable for any illness or death suffered by the employee caused by an adverse reaction to the approved vaccine:
“Accordingly, if a crew member is vaccinated during the course of their employment and subsequently falls ill due to a reaction to an approved vaccination, then the shipowner’s liability for illness and/or death, under the terms of employment and any applicable Collective Bargaining Agreement (CBA), would apply as it would with any other illness.”
That is a specific scenario, but it’s not a big leap before that principle is extended more widely.
Also, don’t expect your private health insurance to cover treatment for vaccine side effects: at least one major provider has already confirmed that this is excluded (as an “experimental” treatment).
And whilst you are at it you might want to have a discussion with your employee liability insurer to ascertain the boundaries of any available personal injury cover.
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You will need answers to all of these questions (and more). So if you are thinking about introducing a vaccine mandate and haven’t thought about all of them yet, now is the time.
If you need further advice on vaccine mandates or COVID-19 related employment and HR issues call us now for a friendly chat about your needs.
