The COVID vaccine is finally being rolled out… and a significant number of people don’t want it. This raises some tough legal questions for HR professionals. Read on for answers.
1. What Does the Government Say About the COVID Vaccine?
The government can’t legally force people to be vaccinated – so it goes without saying that you can’t either. Instead, the government is trying to persuade the public that the vaccines are safe and that it’s in all our best interests to get one so that we can finally return to something like normal.
Its published guidance for frontline healthcare workers explains how vaccines benefit the individual (reducing their risk of catching COVID and making it more likely to be a mild case if they do) and the whole population (reducing the risk of infecting friends, family and vulnerable people).
2. Does Workplace Health and Safety Law Have Any Guidance for The COVID Vaccine?
Not really. Under the Health and Safety at Work Act 1974, employers are required to take “all reasonably practicable” steps to reduce health and safety risks at work to their lowest practicable level. However, that doesn’t include securing your own private vaccine supply and offering it to your employees – and that wouldn’t be reasonably practicable anyway with the current shortages and demand.
However, you can and should strongly encourage your people to get vaccinated. But even if they all do, you still need to protect them by maintaining a ‘COVID-secure’ workplace until the overwhelming majority of the UK population is vaccinated.
3. Is Asking Staff to Get Vaccinated a ‘Reasonable Instruction’?
Employment Lawyers disagree on this one. Legally, if you can establish that asking employees to get vaccinated is a reasonable management instruction, you may be able to discipline them if they refuse.
But can you establish that? It depends on several factors, mainly the risk of transmission to others if the worker doesn’t get vaccinated. The government and the World Health Organisation (WHO) both advise that people who’ve been vaccinated are much less likely to transmit COVID.
The degree of impact this has will depend on the person’s role and level of exposure to others. For example, if they’re a frontline staff member, it’s likely to be reasonable to instruct them to get the vaccine. If they’re a back-office worker, it’s less likely.
What’s more, remember that many staff won’t be offered the vaccine for some time, though it’s still worth thinking ahead, working out your strategy and giving them advance warning of it.
4. What if Staff Refuse a Reasonable Request?
This depends on their reason for refusing. The government acknowledges that there are a few people who are at risk but can’t have the vaccine, including those with severe allergies. Anyone who’s under medical advice not to get the vaccine can of course reasonably refuse it.
Pregnant women are also likely to be legally free to refuse. They won’t be offered the vaccine unless they’re at particularly high risk of catching COVID because of their job or unless they have a health condition that would make COVID more dangerous for them if they did catch it.
Then there are the people who are simply worried about getting vaccinated; the WHO calls this ‘vaccine hesitancy’ and lists it among the top ten threats to global health.
Groups with less reason to trust the government, such as Black British people, tend to be more prone to vaccine hesitancy. Before you consider taking any kind of action against them, make sure you’ve discussed their concerns and directed them to somewhere they can find reliable and impartial information.
Then there are those with religious or philosophical objections, who may be protected under the Equality Act 2010. For instance, some religious groups don’t approve of vaccines, and some vegans avoid vaccinations because they were developed using animal products.
Any policy that adversely affects people from a group protected under the Equality Act (most commonly race, sex, disability, age, or religion or belief) can legally be defined as “indirectly discriminatory” and you can be asked to justify your approach.
Those whose anti-vaccine beliefs are founded on conspiracy theories are unlikely to be protected under the Act, as they have to prove that their beliefs are “worthy of respect in a democratic society”.
5. If Someone Refuses the Vaccine, Can We Fire Them?
Again, possibly, provided you can prove that asking them to get vaccinated is a reasonable management request. However, there are steps you need to go through first. Consider alternatives like permanent homeworking or a role with little human contact. Give them a warning and a final opportunity to refuse before firing them. If you still go ahead with dismissal, give them notice and the right to appeal.
This one could go badly wrong, so it’s highly recommended to get professional legal advice before taking any kind of action against someone for refusing the vaccine.
6. Can We Demand Employees Tell Us If They’ve Been Vaccinated or Not?
Again, that depends if asking them to get the vaccine is a reasonable management instruction. If so, then yes, you’ll need to know so you can check compliance, although as vaccine status (including reasons for not being vaccinated) counts as sensitive personal health data, you’ll have to comply with GDPR.
If you can’t prove that asking them to get the vaccine is a reasonable management instruction, you not only shouldn’t insist that they tell you their vaccine status – you probably shouldn’t even ask.