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Can you require your employees to have the Covid vaccine?

Of interest to employers as their employees return to the workplace will be how potential outbreaks of Covid are prevented, and it may well be tempting to have a blanket policy in place that employees must be vaccinated. The question is whether this is lawful?

Individuals obviously cannot be forced to take a medical treatment or procedure. But, can it be made a mandatory requirement of a role to have the vaccine and dismiss any one who refuses (unless they are medically exempt)? And, if the employee does refuse, would they then have a valid legal claim for compensation or reinstatement?

It may help in due course to look at the outcome of the judicial review that is testing The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 which come into force on 11 November 2021. These are the regulations that compel care home owners to ensure that workers are vaccinated against Covid unless medically exempt. The lawfulness of these regulations are being challenged on six grounds, including incompatibility with the right to bodily autonomy, and disproportionate interference with Article 8 rights by reason of indirect discrimination on the basis of sex and / or race.

Unless employers are in the care home business, they should bear in mind that there is currently no legal requirement for individuals to be vaccinated against coronavirus - however, if employees, for example, have to travel internationally as an integral part of their role, the employee may need to be vaccinated to meet entry requirements. ACAS advises that employers encourage and support staff to be vaccinated, but should stop short of making it a requirement. 

Where employers do perceive a requirement for a mandatory vaccination, it is worth bearing in mind during the decision making process that the employee may have a valid legal claim for:

Constructive dismissal for breach of contract

Discrimination if they have a protected characteristic 

Breach of data protection regulations by requiring a disclosure of vaccination status which may be classed as personal data

Breach of Management of Health & Safety at Work Regulations 1999

unfair dismissal if they have worked for the qualifying period and vaccination status is the reason for dismissal (although if a vaccination requirement is essential to the employee’s role it may be seen as a reasonable requirement).

It is also worth considering the common objections to imposing mandatory vaccines and how as an employer you can address this. Likewise, it is useful to consider whether objections are from a health perspective, pregnancy or breastfeeding concerns, or an ethical stance - be that vegan or anti-vax. 

Employers should therefore consider carefully their vaccination policies and avoid blanket ruling, offering instead incentives such as allowing time off remunerated at the usual rate for vaccination appointments and extending this to cover any time off required for vaccination side effects.

Posted on 7 October, 2021 by Ortolan

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