COVID-19 VACCINATIONS: EMPLOYERS GUIDE
The Public Health (Control of Disease) Act 1984 gives the UK government powers to prevent, control and mitigate the spread of contamination, spread and prevention of infectious diseases. This applies to COVID-19, hence the introduction of the COVID vaccination. However, the government does not have the powers to force members of the public to be vaccinated. Therefore, as things stand at present, an employer cannot force his employees to be vaccinated. Indeed, the legislation stipulates that individuals must not be compelled to undergo mandatory vaccination or treatment. This is further demonstrated in the NHS constitution. This stipulates that consent from the individual MUST be obtained prior to any treatment including the administration of a vaccine.
As the government cannot compel individuals, can employers force their staff to be vaccinated? At present, it seems very unlikely. Compulsion could almost certainly lead to legal challenges under the Human Rights Act. There may be challenges on religious grounds as most mass-produced vaccines use animal derivatives (although there is no evidence if this is the case with the COVID vaccine).
Factors for the Employer to Consider
- An employee is under a specific statutory duty to safeguard his/her safety, and to consider the safety of work colleagues. It can be argued that vaccination is an incumbent duty of an employee under the Health and Safety at Work Act 1974.
- How safe is the vaccine? Very little is known about the possible side-effects, therefore there will be general uncertainty and reluctance, especially in the early days of the roll-out.
- Do you have a widely drafted medical examinations clause? If so, it can be used to compel staff to be vaccinated. But this could raise ethical and discrimination issues.
- As per the government mandate, how can an employer force an employee when the legislation clearly states that it is voluntary? HR policies cannot override the law of the land.
- If the COVID vaccine has animal derivatives, certain religious denominations will strongly object against vaccination.
- Can the employer prevent an employee returning to work unless they are vaccinated? Although an employer is not compelling the employee to be vaccinated, the effect is the same. An employer can argue that in line with an employees’ health and safety duty, a refusal is unreasonable, and a return to work prejudices other staff. Therefore, it is a legitimate health and safety measure. However, as little is known about the true impact of the vaccine, an employer cannot be certain whether an untreated employee poses a risk to themselves or to others, and so preventing their return to work may be give rise to claims for constructive dismissals.
What Should an Employer Do?
Employers should collect all the relevant medical information about the vaccine (as and when it becomes available).
- Consult the staff. Education and information sharing will be key. Explain the purpose, benefits and possible known side-effects, try to allay their fears and reassure them.
- Make available and offer staff the vaccine, more so to employees who are vulnerable and those who work in high-risk jobs such as medical staff and those who work in care homes.
- Allow staff to raise their individual concerns, and deal with them carefully. Remember to take account of staff religious orientation as well as other characteristics.
In conclusion, as the law stands, an employer cannot force an employee to be vaccinated. To do so, may be unlawful and give rise to employment claims. As more information about the vaccine and its impact becomes available, the government may well change its stance and introduce mandatory vaccines. But until then, it is a case of consulting, education, reassuring your staff. Quest can offer you the initial advice to help and guide you through this process.
Shabir
