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09 December 2020
Can employers provide vaccines to employees?
Should employers be encouraging vaccination?
Should employers pay for vaccines?
How will a COVID-19 vaccine affect employers' risk assessments?
Can employers make it a mandatory health and safety requirement for employees to be vaccinated?
What if employees have religious or other objections?
What if employees have medical reasons not to be vaccinated?
What does this mean for employers?
With a vaccination against COVID-19 in sight, many employers will understandably be eager to have their employees vaccinated in hope of their workplace finally returning to some form of normality. This article explores some of the legal issues of which employers must be aware.
The government's medical experts have published an outline of how any vaccine will be rolled out. It is clear from this that healthier, younger members of the public will be the last to be offered a vaccine and that vaccines will not be commercially available for some months.
The government will likely issue guidance for employers in due course when the vaccination is ready and available for use. Given that the Health and Safety at Work Act (HSWA) 1974 obliges employers to take reasonable steps to reduce any workplace risks, it would be fair to say that employers should at the very least be encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace.
This is not currently an option as a vaccine is not commercially available. However, if employers require employees to be vaccinated as a health and safety measure, they must pay for the cost of the vaccination.
Many employers will be happy to pay for the COVID-19 vaccination, in a similar way that large numbers of them do for flu vaccinations. This would not be a taxable benefit if the cost does not exceed £50. It is possible that, if the cost exceeds this price, the government will provide for an exemption.
Employers will need to update their risk assessments to reflect the availability of a vaccine when it is rolled out more widely. In view of the potential for individuals to refuse a vaccination (see below), risk assessments may need to determine whether additional measures can be put in place if employees choose not to be vaccinated.
This will be of greater importance in certain settings (eg, health and care), where COVID-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations and choosing not to have the vaccination would put patients at risk.
As mentioned above, the HSWA obliges employers to reduce workplace risks. To meet those duties, it is highly likely to be reasonable for employers to ask employees to be vaccinated. Employees also have a duty under the HSWA to cooperate with their employer so that the employer can comply with their duty to reduce workplace risks.
If employers could show that having a vaccine is the most reasonably practicable way of mitigating the risk of COVID-19, having carried out a risk assessment, they could in theory also mandate the vaccination as a health and safety requirement. However, it may be risky to say that a refusal to get a vaccine would necessarily amount to a health and safety breach by employees, given that the government (the largest employer in health and care settings) is not making a vaccination mandatory.
A recent survey from YouGov suggests that a fifth of the public are unlikely to get a COVID-19 vaccination. Reasons for this vary, from lack of confidence in the safety of a vaccination to being opposed to vaccinations in general (although reasons for such opposition are unclear).
The Equality Act (EqA) 2010 protects employees against discrimination on grounds of religion or belief. While a small number of religious groups disapprove of vaccinations, most religions do not disagree with vaccination in principle. However, as a result of other beliefs of those religions (eg, not eating or using animal-based products), followers may refuse a COVID-19 vaccination because of its ingredients (eg, pork gelatine).
Vegans may also disagree with vaccinations that contain animal-based ingredients or have been tested on animals. Ethical veganism has been found by an employment tribunal to amount to a belief, capable of being protected under the EqA (for further details please see "Vegans protected by Equality Act: what does it mean for employers?").
Therefore, some people with recognised protected beliefs may refuse a COVID-19 vaccination because of that belief. It is important to remember that people who follow a particular religion may still choose to get a vaccination even if there are religious arguments against it and ethical vegans may make the same choice even if a vaccine contains animal products or has been tested on animals. This does not mean that those individuals no longer have protected beliefs or that other people who choose to refuse vaccination cannot be protected.
Could a general belief against vaccinations be protected as a philosophical belief (for further details please see "Something to be-leave in? Brexit as a philosophical belief")? In order to qualify, a belief must:
A general belief against vaccinations is unlikely to be protected, because the reasons why each person may hold this belief will differ. This was the approach taken in Conisbee v Crossley Farms, where the employment tribunal decided that vegetarianism was not a philosophical belief due to the wide range of different reasons for which people chose to be vegetarian.
A more specific belief against vaccinations may be protected if individuals can explain it as part of a cohesive and serious conviction, rather than a point of view based on the present state of information available, although this will be difficult to prove. In addition, such a belief may not be regarded as worthy of respect in a democratic society. Forstater v CGD Europe is an example of a case in which the employment tribunal considered this to be the case, where the belief in question violated the human rights of others. Similarly, the Equality and Human Rights Commission has made clear that for a belief to be worthy of respect, it must not conflict with the fundamental rights of others.
In conclusion, while it is not outside the realms of possibility that an anti-vaccination belief could be protected by itself, this is unlikely. By contrast, people with religious beliefs against a vaccination and ethical vegans objecting due to animal products and testing are likely to have a protected belief. Therefore, vaccination policies may be indirectly discriminatory unless they can be justified.
It is possible that employees with certain medical conditions will be advised against or choose not to be vaccinated. Such employees may be disabled for the purposes of the EqA and their choice not to get vaccinated could be "something arising from" that disability. This would mean that they could be treated unfavourably as a result, unless this was justified.
Employers will need to consider vaccination as part of their risk assessments and should be encouraging employees to get vaccinated once this becomes a realistic possibility. If employers intend to mandate a COVID-19 vaccine as part of their approach to reducing risks, they will be open to discrimination claims and will need to consider whether there are reasonable alternatives. This should be explored when carrying out risk assessments.
Employers should be careful not to judge or stereotype employees. Just because an employee is part of a religious group or an ethical vegan does not automatically mean that they will refuse to be vaccinated, so this should not be assumed. Equally, employers should not assume that the reason for someone's refusal is what the employer perceives their religion to be.
Vaccination policies could potentially be objectively justified as a proportionate means of achieving a legitimate aim. Employers are likely to have legitimate aims relating to health and safety and maximising the number of employees who can attend work safely. Vaccination policies may be a proportionate way of achieving those aims, although this will depend on the way in which they are operated and the impact on individuals.
A policy which, for instance, allows employees to return to offices only if they have been vaccinated and leaves other workers working at home could well be justifiable. The legitimacy of employers' aims and whether their policies are proportionate are questions to which the answer may vary over time. For example, once 'herd immunity' has been established, it will be harder to justify not making any exceptions for vaccine-objectors.
At present, it seems clear that a COVID-19 vaccine will be unavailable to employees for some time. These questions will all need to be considered in light of the circumstances existing at that time, so employers should not be looking to finalise their policies just yet.
For further information on this topic please contact Sean Dempsey or Saffron O'Gorman at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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