Is mandating employees vaccinate against COVID practical, or just too risky? 

By now I think most of us have come to terms with the fact that COVID is here to stay. As hospitalisations fall and the panic about the virus begins to subside, the ‘new normal’ looks to be wary of the virus while trying replicate life before the pandemic as closely as is safe.  In their most recent report, the government has asserted that ‘vaccination is the single most effective way to reduce deaths and severe illness’, so it should be no surprise that employers are keen to immunise their workforce. A new study from ACAS found that over 1 in 5 employers plan on implementing a ‘no jab, no job’ policy over the next year for both existing and new staff.

Mandating vaccinations may to many seem a sensible option to keep employee’s safe and increase presenteeism, however it can be a very tricky legal issue.  Currently 86.7% of people over the age of 12 have had two doses of the vaccine, so it is fair to assume that most of the workforce has been immunised to some degree. However, there is a minority who may refuse to be vaccinated for several reasons, including medical exemptions, refusal on religious or spiritual grounds, or general vaccine hesitancy. Enforcing the vaccine on these workers may lead to claims of indirect discrimination based on race, gender or disability. Data protection repercussions should also be considered. Health records have a protected status of ‘special category data’ which requires extra care and evidence of necessity to justify obtaining, a lack of a legitimate aim may lead to GDPR claims.

Not only could a vaccine policy cause legal issues, but it could impact on recruiting new talent. A vaccine policy could deter those who are unable or unwilling to vaccinate from applying or accepting offers. It could also make the culture of your business seem less inclusive and supportive, pushing you further down prospective employees lists.

Considering issues such as these, ACAS has advised employers to find ways to support staff to get the vaccine rather than insisting on it. But how is this best done? Here are a few suggestions from us:

• offering paid time off for vaccination appointments
• sharing government vaccine health information with staff
• agree a vaccine policy that’s appropriate for both staff and the organisation

If an employer feels it’s important for staff to be vaccinated, they should talk together with staff or the organisation’s recognised trade union to discuss what steps to take

If you require help with your approach to COVID-19 safety in the workplace then reach out to one of us here at mpm Legal Solutions for advice – Meet the team – MPM Legal.