Howes Percival warns employers against the risks of mandatory ‘no jab, no job’ policies.
Law firm Howes Percival is urging companies to consider the risks of adopting a blanket ‘no jab, no job’ employment policy.
Currently, vaccination against COVID-19 is not compulsory, with the Government leaving it up to businesses to decide the ethics and feasibility of mandatory vaccination policies in their workplace. After months of lockdown restrictions, companies will be eager to reassure customers and clients that they operate a ‘COVID-19 safe’ environment. However, Howes Percival is warning employers to tread carefully and obtain specific legal advice regarding the implementation of any workplace vaccine policies.
Simon deMaid, Partner at Howes Percival, commented, “While the need for vaccination policies in the workplace may seem premature, the expected trajectory of the vaccination rollout will lead to more instances of employers asking for or even requiring employees to receive the vaccine.”
“There are still many unknowns about COVID-19 and the vaccinations. Depending on the science, wide-scale vaccination may not be an all-encompassing solution for a return to ‘normality’ or a pre-COVID-19 workplace environment. The vaccines have been shown to be effective at reducing or eliminating symptoms and effects of COVID-19, but the extent to which they prevent transmission or the period of immunity is still unknown. This raises concerns about the feasibility of employers requiring vaccination, and highlights questions about the effectiveness of these polices in reducing risk to employers, employees, and customers.”
Should employers introduce a ‘no jab, no job’ vaccination policy?
Ultimately, it is a commercial decision for each employer to take based on the level of risk they are prepared to take. However, employers should bear in mind that a ‘no jab, no job’ policy is too simplistic an approach for most companies because it does not take into account many of the current vaccine ‘unknowns’. Existing employees may have medical clauses in their contracts which could include a requirement to have a vaccination. If not, employers may take steps to implement a vaccination policy or contractual clause. It may also be possible to have a ‘no jab, no job’ policy for job applicants to any new role. This does not come without employment law risks, however, specifically discrimination.
Can an employer compel an employee to take the vaccine?
In short, no. Employers cannot physically force or compel employees to take a COVID-19 vaccine. At this stage, rather than relying on compulsory vaccination, employers may wish to focus on how best to educate employees and publicise the benefits of taking the vaccination.
Can employers require employees to have a vaccine on health and safety grounds?
Employers are required to reduce workplace risks under the Health and Safety at Work Act 1974 and should continue to follow COVID-secure guidance regardless of vaccination status. Requiring employees to take the vaccine on grounds of health and safety law would require employers to prove that vaccination protects other employees and the third parties they encounter. With this issue yet to be resolved, relying on health and safety law is likely to be risky at this stage.
Can an employer dismiss an employee for refusing a vaccine?
In theory, yes. However, whether the dismissal is fair or not will depend on the individual circumstances. If the request to be vaccinated is reasonable, an employee’s unreasonable refusal to comply could result in disciplinary action. Whether a request is reasonable will depend on the circumstances of the individual employee, the employer’s business and the sector they operate in.