In a health care setting, mandating the COVID-19 vaccination is perhaps less controversial. It is also capable of objective justification in that such professionals should be protected from occupational infection and in turn to protect the vulnerable persons they care for.
It is perhaps less straightforward to make a case in favour of mandating vaccination in other sectors. This blog considers the conflicting arguments in relation to mandated vaccination. It will explore the potential legal and ethical implications of such a proposal. Lastly, we consider how businesses are likely to respond to a mandated vaccine.
Duty of Care and Health and Safety
Health care professionals have a duty not to harm their patients. The protection of patients is one of the key justifications for requiring such persons to be vaccinated. As well as the occurrence of superspreading (whereby one person infects a disproportionate number of other individuals) events.
Reducing transmission among health care professionals by way of a mandated vaccine could help to reduce superspreading events in healthcare settings. This would benefit the vulnerable and/or those with impaired immune systems that many health care professionals are focused on treating.
To extend the same rationale to other sectors, employers owe a duty of care to their staff and anyone visiting their premises. Current data shows that the COVID-19 vaccine not only reduces the likelihood of catching the virus. But also the likelihood of serious illness and the rate of transmission when it is contracted.
A logistical nightmare?
The National Care Forum (“NCF”) has spoken out against the former Secretary of State for Health and Social Care, Matt Hancock. They comment that the requirement of a mandatory vaccine threatens to become a logistical nightmare.
The former Secretary of State has also commented that tradesmen, visiting NHS staff, hairdressers and other workers who serve sites will need to be double jabbed by the autumn.
The NCF has identified 35 other types of key workers, from entertainers to disease inspectors, which care homes will not be allowed to admit unless they are double jabbed. They fear that such a regulation will leave care homes legally responsible for verifying the vaccination status of people over whom they have no employment oversight.
The same logistical difficulties are likely to be experienced across further sectors. Mandating vaccination for all staff is one thing. Mandating it and confirming vaccination status for all visitors to the premises is quite another.
The legal impact of employers forcing a Covid Vaccine
Employers have a legal duty to ensure the health and safety of their workforce as far as reasonably possible. Therefore, such a requirement may appear at face value to be an effective and appropriate method of satisfying this duty.
However, employers should be cautious in pursuing a policy of mandatory vaccination given the potential legal implications.
A mandated vaccine policy has the potential to expose employers to claims for discrimination and constructive dismissal. Particularly if an employer were to take disciplinary action because an employee refuses to be vaccinated. But the refusal is related to a protected characteristic under the Equality Act 2010.
For example, there may be workers who are disabled and cannot have the vaccine. Pregnant workers or those trying to have a family who on balance have decided against it. Younger workers who may not yet have been offered the chance to have the vaccine. Or those who refuse on the grounds of religion or philosophical belief.
Additionally, such a policy could infringe an employees’ right to respect for private and family life under Article 8 of the European Convention on Human Rights. Or, potentially, the freedom of thought, conscience and religion under Article 9.
Whilst an employer may be able to justify such a breach, this is likely to be difficult. Particularly where less personally invasive measures are available to employers to maintain the health and safety of their workforce. For instance continued use of social distancing and Personal Protective Equipment.
Employers would also be advised to consider the data protection implications of mandating vaccinations. Holding information on whether an employee has been vaccinated is likely to be considered a special category of data under data protection law.
The risk of employment claims seems to be a legitimate concern in practice. As a result, care homes have requested the government to indemnify them against legal claims from staff who refuse the vaccine.
Degrees of vaccination policy
Public health should arguably strive to implement the least restrictive medical intervention where possible. Yet a vaccine mandate is the most restrictive and intrusive form of vaccine policy.
There are a variety of vaccination policies that can be ranked in terms of restrictiveness. Ranging from mere information campaigns to outright compulsion, to forced vaccination.
In the case of vaccination, the rights and freedoms at stake are the rights to make decisions about one’s own health and the right to bodily integrity.
Workers within the care home sector will likely be giving these considerations serious thought, with many threatening to terminate their employment if the vaccine is made mandatory. Others, however, may be embracing the thought of working in a fully vaccinated environment.
The business response to the vaccine
Employers will need to assess the pros and cons of a mandatory vaccination policy carefully as there is no “one size fits all” approach.
This should involve detailed risk assessments and businesses should not underestimate the importance of full and meaningful consultation between employers and employees.
It is perhaps likely that in some businesses asking whether someone is willing to take the vaccine will become a part of the interview process for new applicants. And moreover, that it will be a condition of employment.
Bloomsbury Publishing has announced that the vaccine will be compulsory for all UK staff returning to its offices. Similarly, Pimlico Plumbers have said that it would require compulsory vaccination for all staff. The company has also already commented that it would not hire anybody new who was not vaccinated.
Global financial services giant J.P. Morgan have also commented that it will instruct US staff to register their vaccine status on an internal web portal. Staff may be allowed to tick a box saying that they would rather not disclose their status. Although the bank hopes that only a small number of employees will opt to do so.
Requiring workers to be vaccinated may be regarded as a reasonable instruction in a social care setting. However, employers in other sectors arguably do not have the same strong rationale for instructing staff to be vaccinated. This is because employees, particularly in the professional services sector, have shown that they can work effectively from home in the past year.
Employment law looks set to be tested in the weeks and months ahead.
Getting Further Legal Advice
For advice on vaccination policy relevant to your business, please contact our employment team on 0115 910 6244.