With the first people starting to receive the COVID-19 vaccines in the UK, there are feelings of excitement and trepidation in equal measures. With the first 800,000 doses to be administered over the coming weeks, many questions are being raised by employers and employees alike; particularly whether employers can force employees to be immunised.
In England and Wales, the Public Health (Control of Disease) Act 1984 gives the government powers to prevent, control or mitigate the spread of a contamination, but it explicitly prevents a person from being required to undertake medical treatment. This law has been extended to the devolved nations of Scotland and Northern Ireland via the Coronavirus Act 2020.
Reduce workplace risks
The Health and Safety at Work Act 1974 ("the Act") requires employers to take reasonable steps to reduce workplace risks. Under the Act, employees also have a duty to cooperate with their employer to reduce workplace risks. It follows that a reasonable step to reduce the risk of COVID-19 in the workplace could be to require employees to take the vaccine, as immunisation of employees will allow for a return to 'normal' in the workplace. If an employer carried out a risk assessment and concluded that having a vaccine is the most reasonably practicable way of controlling the risk of COVID-19 then, in theory, they could order the vaccination as a health and safety requirement.
Given that the government is not making the vaccination mandatory, the employer would be able to argue that this control measure is a best practice measure rather than a reasonably practicable one.
On that basis, it would also suggest that any refusal to get a vaccine would not amount to a health and safety breach.
Vaccination procedures and policies
In order to ensure compliance with the Act, employers will need to put in place well thought out and considered strategies, procedures and policies concerning the vaccine. They should consider their internal communication strategies to deliver clear communications regarding the vaccine to its employees.
Employers will need to update their risk assessments when the vaccine has been rolled out more widely. Such risk assessments are even more important in certain workplaces, such as health and care, where the risks of infection are higher.
The risk assessment may also need to provide for those who have and have not had the vaccine, which raises the question whether employers need to know whether individuals have been vaccinated against COVID-19.
Employers will have to make data protection considerations as the Information Chief Commissioner's office has confirmed that an employee's health information is special category personal data. It is imperative that employers ensure that they handle their employee's data carefully, and only collect data that is necessary.
Avoiding discriminatory behaviour
There are medical reasons why employees may choose not to take the vaccine, for example those who have severe allergies and where there are religious and social beliefs involved. Employers must take care in the approach they take in relation to the vaccine, so as not to discriminate against people who hold these views. Under the Equality Act 2010, employees are protected against discrimination on the grounds of religion or belief. Recent case law confirms that this protection extends to ethical vegans. If employers intend to mandate the vaccine, then they will be open to discrimination claims, so they must consider an appropriate approach so as not to discriminate.
At present, it is difficult to say what the correct approach should be. Much will depend on the individual business who will now have to consider the measures discussed above – data protection, religious beliefs and employment rights – in their risk assessment process. It may well be that employers will want to consider the prospect of only allowing a return to the workplace of staff who have been immunised, but any future UK-wide 'herd immunity' will make it difficult for employers to justify such an approach.
Guidance for employers
The government is likely to issue guidance for employers when the vaccine becomes more readily available, at which point these questions can be reconsidered. What we can say from our experience of the past nine months is that communication with the workforce is imperative to ensure a harmonised approach to any changes and controls that are made to ensure the business is COVID-secure.