With a vaccination against coronavirus in sight, many employers will understandably be eager to have their employees vaccinated in hope of their workplace finally returning to some form of normality. This article explores some of the legal issues.
Can employers provide the vaccination to their employees?
The government’s medical experts have published an outline of how any vaccine will be rolled out. It is clear from this that healthier, younger members of the public will be the last to be offered a vaccine and that vaccines will not be commercially available for some months.
Should employers be encouraging the vaccine?
We expect the government to issue guidance for employers in due course when the vaccination is ready and available for use. Given that the Health and Safety at Work Act 1974 (HSWA) obliges employers to take reasonable steps to reduce any workplace risks, it would be fair to say that employers should at the very least be encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace.
Should employers pay for the vaccine?
This is not currently an option as a vaccine is not commercially available. However, if an employer requires an employee to be vaccinated as a health and safety measure, it is required to pay for the cost of the vaccination.
Many employers will be happy to pay for the COVID-19 vaccination, in a similar way that large numbers of them do for flu vaccinations. This would not be a taxable benefit if the cost does not exceed GBP 50. It is possible that, if the cost exceeds this, the government will provide for an exemption.
How will a vaccine impact an employer’s risk assessment?
Employers will need to update their risk assessments to reflect the availability of the vaccine, when it is rolled out more widely. In view of the potential for individuals to refuse a vaccination (see below), risk assessments may need to determine if additional measures can be put in place if an employee chooses not to be vaccinated.
This will be of greater importance in certain settings (such as health and care), where COVID-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) and choosing not to have the vaccination would put patients at risk.
Can employers make it a mandatory health & safety requirement for employees to be vaccinated?
As mentioned above, the HSWA obliges employers to reduce workplace risks. To meet those duties, it is highly likely to be reasonable for employers to ask employees to be vaccinated. Employees also have a duty under the HSWA to co-operate with their employer so that the employer can comply with their duty to reduce workplace risks.
If an employer could show that having a vaccine is the most reasonably practicable way of mitigating the risk of COVID-19, having carried out a risk assessment, it could in theory also mandate the vaccination as a health and safety requirement. It may, however, be risky to say that a refusal to get the vaccine would necessarily amount to a health and breach by the employee, given that the government itself (the largest employer in health and care settings) is not making the vaccination mandatory.
What if employees have religious or other objections?
A recent survey from YouGov suggests that a fifth of the public are unlikely to get the vaccination. Reasons for this vary, from lack of confidence in the safety of the vaccination to being opposed to vaccinations in general (although reasons for such opposition are unclear).
The Equality Act 2010 (EqA) protects employees against discrimination on grounds of religion or belief. While a small number of religious groups disapprove of vaccinations, most religions do not disagree with vaccination in principle. However, as a result of other beliefs of those religions – such as not eating or using animal-based products – followers may refuse the vaccination because of its ingredients (e.g. pork gelatine).
Vegans may also disagree with vaccinations that contain animal-based ingredients or have been tested on animals. Ethical veganism has been found by an Employment Tribunal (ET) to amount to a belief, capable of being protected under the EqA.
Some people with recognised protected beliefs may therefore refuse the COVID-19 vaccination because of that belief. It is important to remember that people who follow a particular religion may still choose to get the vaccination even if there are religious arguments against it, and ethical vegans may make the same choice even if the vaccine does contain animal products or has been tested on animals. This does not mean that those individuals no longer have protected beliefs, or that other people who choose to refuse the vaccination cannot be protected.
Could a general belief against vaccinations be protected as a philosophical belief? As we explored in our article on whether Brexit could amount to a philosophical belief, in order to qualify the belief must:
- be genuinely held;
- be a belief, not an opinion or a viewpoint;
- relate to weighty and substantial aspect of human life;
- attain a certain level of cogency, seriousness, cohesion and importance;
- be worthy of respect in a democratic society.
A general belief against vaccinations is unlikely to be protected, because the reasons why each person may hold this belief will differ. This was the approach taken in Conisbee v Crossley Farms https://www.gov.uk/employment-tribunal-decisions/mr-g-conisbee-v-crossley-farms-ltd-and-others-3335357-2018, where the ET decided that vegetarianism was not a philosophical belief due to the wide range of different reasons for which people chose to be a vegetarian.
A more specific belief against vaccinations may be protected if the individual can explain it as part of a cohesive and serious conviction, rather than a point of view based on the present state of information available, although this will be difficult to prove. In addition, such a belief may not be regarded as worthy of respect in a democratic society. Forstater v CGD Europe https://www.gov.uk/employment-tribunal-decisions/maya-forstater-v-cgd-europe-and-others-2200909-2019 is an example of a case in which the ET considered this to be the case, where the belief in question violated the human rights of others. Similarly, the Equality and Human Rights Commission has made clear that for a belief to be worthy of respect, it must not conflict with the fundamental rights of others.
In conclusion, while it is not outside the realms of possibility that an anti-vaccination belief could be protected by itself, we consider this is unlikely. In contrast, people with religious beliefs against the vaccination and ethical vegans objecting due to animal products/testing are likely to have a protected belief. Vaccination policies may therefore be indirectly discriminatory unless they can be justified.
What if an employee has medical reasons not to be vaccinated?
It is possible that employees with certain medical conditions will be advised against or choose not to take the vaccine. Such employees may be disabled for the purposes of the EqA and their choice not to get vaccinated could be ‘something arising from’ that disability. This would mean they could be treated unfavourably as a result, unless this was justified.
What does this mean for employers?
Employers will need to consider vaccination as part of their risk assessment and should be encouraging employees to get vaccinated once this becomes a realistic possibility. If an employer intends to mandate the vaccine as part of its approach to reducing risks, it will be open to discrimination claims and will need to consider whether there are reasonable alternatives. This should be explored when carrying out the risk assessment.
Employers should careful not to judge or stereotype employees. Just because an employee is part of a religious group or an ethical vegan does not automatically mean they will refuse to be vaccinated, so this should not be assumed. Equally, employers should not assume that the reason for someone’s refusal is what the employer perceives their religion to be.
Vaccination policies could potentially be objectively justified as a proportionate means of achieving a legitimate aim. Employers are likely to have legitimate aims relating to health and safety and maximising the number of employees who can attend work safely. Vaccination policies may be a proportionate way of achieving those aims, although this will depend upon the way in which they are operated and the impact on the individual.
A policy which, for instance, allows employees to return to offices only if they have been vaccinated and leaves other workers working at home could well be justifiable. The legitimacy of the employer’s aims and whether its policy is proportionate are questions to which the answer may vary over time. For example, once ‘herd immunity’ has been established, it will be harder to justify not making any exceptions for vaccine-objectors.
At present, it seems clear that we are still some time away from a vaccine being available to any employees. These questions will all need to be considered in the light of the circumstances existing at that time, so employers should not be looking to finalise their policies just yet.