Can employers make it mandatory for employees to receive both vaccinations as a condition on returning to work?
A basis for mandating covid-19 vaccinations in the workplace is not yet something that has been tested in UK law, nor has the government issued any guidance, advice or regulation in this area.
Nevertheless, some employers may want to introduce a mandatory vaccination policy for their employees, if so there are a number of issues which should be considered when making that decision such as but not limited to:
· Establishing whether there are grounds to necessitate employees being vaccinated taking into account the working environment and setting (for example employees in a healthcare setting are more likely to have grounds to justify the need to employees to have had both vaccinations);
· What issues arise out of a risk assessment;
· Wider public reasons for mitigating the risk of infection and transmission of the virus (however this should be considered alongside other factors as reliance on wider public interest alone is an untested area which could pose potential legal issues);
· What alternatives are available such as regular testing or a voluntary vaccination policy which are less intrusive.
Taking the above issues into account, an employer could then make the appropriate decision which suits their organisation and if a necessary justification has been established it is imperative that exceptions are made for those who are unable to receive the vaccination for reasons of:
· A severe allergic reaction to the first dose of the vaccine;
· A severe allergic reaction to the ingredients of the vaccine;
· An episode of blood clothing (a side effect which would prevent the employee receiving the Oxford/AstraZeneca vaccine).
The guidance for pregnant employees was changed on 16th April 2021 and now recommends those who are pregnant to take up the Pfizer or Moderna vaccine.
Can employers ask for proof of an employee’s vaccination status?
Employers can ask employees to prove their vaccination status, however, there needs to be a legal basis for doing so.
The Information Commissioners Office (ICO) has issued advice to those collecting vaccination data from employees stating that it must be clear, necessary and transparent as well as being for a specific purpose as the data falls within the category of “special category data”.
In demonstrating a specific purpose for collecting vaccination data from employees, employers could potentially justify the need to do so on the grounds of substantial public interest or to comply with a legal obligation.
Organisations operating in the care sector are more likely to be able to justify relying on a legal obligation reason as a result of the mandatory vaccination regulation due to come in force in early November of 2021, while sectors in other fields of work could potentially rely on reasons of upholding a duty of care to the employees overall as well as a general prevention of spread of the virus.
It is imperative for employers to keep in mind that the use of this information must not result in any unfair or unjustified treatment of employees in any way.
Is the requirement for mandatory vaccination in the workplace discriminatory against younger employees?
Age discrimination is unlikely to be a point of concern when it comes to mandating the covid-19 vaccine due to the government’s successful vaccination scheme roll out to those over the age of 18 in mid-July of 2021.
First vaccines had been offered to everyone over the age of 18 and above from mid-July of 2021, with people under the age of 40 being offered an alternative to the Oxford/AstraZeneca to mitigate any risks of potential blood clotting episodes.
Employers should nevertheless, bear in mind that it may be beneficial to give younger employees a longer amount of time to receive a full vaccination course if the mandatory vaccination criteria places a strict vaccination deadline for employees to return to work.
Can a mandatory vaccination policy in the workplace bring about a risk of discrimination against disabled employees?
The risk of discriminating against a disabled employee as a result of mandating the covid-19 vaccine is low, due to those living with a disability having been prioritised in the government’s vaccination phase.
Employees who are clinically vulnerable and classed as disabled under the Equality Act were fourth in the line of priority to receive the covid-19 vaccination and those in the “at risk” group were sixth on the list.
The “at risk” category included a number of clinical conditions to those who have :
· blood cancer (such as leukaemia, lymphoma or myeloma)
· a heart problem
· a chest complaint or breathing difficulties, including bronchitis, emphysema or severe asthma
· a kidney disease
· a liver disease
· lowered immunity due to disease or treatment (such as HIV infection, steroid medication, chemotherapy or radiotherapy)
· rheumatoid arthritis, lupus or psoriasis (who may require long term immunosuppressive treatments)
· have had an organ transplant
· had a stroke or a transient ischaemic attack (TIA)
· a neurological or muscle wasting condition
· a severe or profound learning disability
· a problem with their spleen, example sickle cell disease, or you have had your spleen removed
· those seriously overweight (BMI of 40 and above)
· those living with a severe mental illness.
The government has further confirmed that all those who are extremely vulnerable should have received their second dose by the 19th July 2021, and therefore, by now should have received both doses of the vaccination.
If for whatever reason a disabled employee has not been vaccinated and is refusing to get vaccinated, their refusal to get vaccinated could be something which arises out of their disability and it is therefore important to remember that an unvaccinated disabled employee is not treated less favourable as this would amount to disability discrimination under the Equality Act, unless there are grounds to objectively justify the requirement by it being a proportionate means of achieving a legitimate aim.
Can a mandatory vaccination policy in the workplace bring about a risk of religion or race discrimination?
A risk of discriminating against employees of ethnic minority backgrounds in mandating the covid-19 vaccine is low, however, employees should treat any refusal sensitively and provide employees with the relevant information to enable them to make an informed choice.
Government data shows that members of minority ethnic groups are less likely to be vaccinated. The reasons for a lower rate of vaccine uptake include perception of risk, low confidence in the vaccine, distrust, access barriers, inconvenience, socio-demographic context and lack of endorsement as well as a lack of communication from trusted providers and community leaders.
People of some ethnic minority backgrounds may express concerns about whether the vaccine is compliant with the dietary practices of major faiths, or with their ethical positions around medical interventions.
While there are no documented negative effects of the vaccine disproportionately effecting people of ethnic minority backgrounds employers should nevertheless promote, educate and communicate with employees of ethnic minority backgrounds of the factual data regarding the vaccines if they express resistance or concern.
The government has launched a Workplace Challenge scheme in February of 2021 which supports businesses in the private sector to:
· listen to employees’ needs and concerns about the impact and prevention of COVID-19;
· follow the latest public health guidance to protect themselves, their employees, their workplace, their customers, and their community from COVID-19;
· promote vaccine literacy based on the latest scientific evidence of vaccination benefits and risks;
· encourage vaccine confidence and uptake;
· advocate for accessible, equitable, and timely vaccination of employees;
· engage with communities, schools, faith-based organisations and public health leaders to stop the spread of COVID-19.
Is it fair to dismiss an employee if they refuse to get vaccinated?
If an employee refuses to get vaccinated for whatever reason and as a result breaches the organisation’s mandatory vaccination policy, a dismissal of such an employee who has more than two years’ service must be carefully considered.
The reasons for dismissal must be clearly established together with the compelling reasons justifying the dismissal.
Taking into account the issues addressed in the question above “Can employers make it mandatory for employees to receive both vaccinations as a condition on returning to work?” if an employee refuses to get vaccinated due to hearsay, false information or unreliable sources of information about the vaccine the employer should provide that employee with reliable data and information relaying the benefits of the vaccine to counterweigh the misinformation.
Dismissals due to refusal of vaccination are yet to be tested in the English tribunals and courts and any decision to dismiss must be carefully thought out and documented while outlining the ultimate objectives for the necessity to dismiss.
We’re here to help your business with any employment law challenge. Get in touch with a member of the team today on 0161 833 5667 or email Russell.Brown@Glaisyers.com