With vaccines now being more widely available, can employers require their employees to vaccinate?
The Covid-19 vaccine is now available in Jersey for those aged 50 or over, clinically at moderate risk aged 16 to 64, clinically extremely vulnerable, and health and social workers. The timeline of the vaccine programme for the rest of the Island’s population will undoubtedly follow in short order.
With this in mind…
Can employers require their employees to vaccinate?
Vaccinations have not generally been mandatory in Jersey and it is not likely for the COVID vaccine to become compulsory either, but the idea is to have as many people vaccinated as possible to protect the wider population. We have all seen governments, health services and even celebrities, encouraging the public to vaccinate – employers also play a crucial role in this campaign.
So, should employers be encouraging vaccinations? In short, the answer is yes. Employers have a duty of care towards their employees which justifies their efforts in encouraging vaccines in order to protect employees themselves and the rest of the workforce.
However, we all know not everyone intends to vaccinate against COVID-19. Some can’t have the vaccine for medical reasons, some won’t have it on religious grounds, and some are uncertain due to the lack of confidence in the safety of the vaccine or a general fear of vaccinations, or even a phobia.
Employers can alleviate some of the general uncertainty concerns by educating their staff across the board through an awareness campaign based on medical information, impartial communication of factual data, involving line managers, and counteracting conspiracy theories through promoting scientific evidence. Employers should retain copies of any such communication in case other employees challenge them for not taking adequate steps to protect the health and safety of the workforce.
Raising awareness should be applied equally to all employees and not only to those who are hesitant or refuse to vaccinate. There is some evidence that vaccine hesitancy tends to be disproportionally higher within ethnic minority groups, therefore distributing information to employees based on their ethnicity would equal unlawful discrimination.
Some can’t
For employees with medical reasons that prevent vaccination, employers may need to seek medical advice (with the employee’s consent) and should take other steps, for example reinforcing safe working environment (such as the continued use of PPE), facilitating remote working where possible, or considering an alternative role.
These employees could be protected by the Jersey disability discrimination law, therefore employers need to tread carefully.
Some can, but won’t
Dealing with hesitant employees is difficult, but encouraging and educating them, and engaging with them, is key in managing vaccine hesitancy. It may be helpful to discuss an employee’s concerns individually to understand the reasons behind their apprehension, but not to pressurise them.
Some employees may refuse to vaccinate on the basis of their religious belief. Although ‘religion’ itself is not a protected characteristic under the Jersey discrimination law – race is, which includes colour, nationality, national origins and ethnic origins. Therefore, employers should take extra care and take each case on its own merits.
If an employee refuses vaccination, the first course of action is to get to the bottom of the employee’s reasons for refusal and to seek alternative solutions, such as continued remote working, physical distancing within the workplace, screens, the use of PPE, offering a different role, and so on. However, employers need to be mindful that not allowing unvaccinated employees back into the workplace could pose a risk of a claim, but then so does pressurising employees to vaccinate. In some sectors though, such as health and care, employers may be able to take a stricter approach as a last resort if all other efforts have been unsuccessful.
No jab, no job?
Some employers in the UK are introducing a policy whereby no job is offered to those who refuse to vaccinate. This approach comes with many serious considerations, such as infringement of human rights, potential discrimination and compliance with government and health guidance, whilst fulfilling the employer’s duty of care. Although this has not yet been tested in courts and tribunals, such policy could result in multiple claims. Employers considering this policy should first seek expert legal advice.
Mandatory vaccinations
In essence, vaccinations cannot be physically forced and require employees’ consent even if the employer introduces a contractual requirement to vaccinate.
Under normal circumstances, an employee’s failure to follow their employer’s reasonable instructions could result in dismissal. However, whether an instruction to vaccinate against COVID-19 is reasonable or not has not been tested in courts and tribunals, not even in the UK. An instruction to vaccinate in the care industry or hospitals may well be reasonable, but those industries where remote working has been effective are likely to be in a weaker position to demonstrate that their instruction to vaccinate has been reasonable.
No employer wants to be the first test case; therefore, a careful and considerate approach is recommended, and employers should seek expert advice before disciplining or dismissing an employee for refusing to vaccinate.
Other considerations
Employers should update their risk assessments to include vaccinations and alternative safety measures to receiving the vaccine.
As government health guidance often changes at short notice and replaces the previous advice available, employers should keep a copy of the advice relied upon at the time to protect themselves.
Some employers may wish to implement a vaccination policy to outline their attitude towards vaccinations, however such policies should be drafted and operated very carefully to take into account potential discrimination as well as data protection issues and health and safety.
Medical information, such as whether an employee or a potential employee has received a vaccine, falls under special category data under the Jersey data protection legislation, therefore employers must remember to collect, process and share such information in line with the requirements of the law. Employers should have an up-to-date employee privacy document in place and comply with the data protection principles, such as lawfulness, fairness and transparency.
Some employers already offer flu vaccinations as a workplace benefit and, moving forward, may wish to include the COVID-19 vaccine, although they are not obliged to do so.
Regarding travel, employers will need to consider how they will manage work-related travel and employees going on holiday when travel restrictions are lifted.
As some businesses work towards returning to the workplace in some shape or form, employers will need to plan their return-to-work process.
Written by Anna Norton from Virtual HR.
