Can employers insist that employees are vaccinated against COVID-19?

Posted in : Seamus Says - Employment Law Discussion on 3 December 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Coronavirus/COVID-19; COVID-19 vaccination

Q: Can employers insist . . . when it is widely available, obviously. We're only just starting next week. But when it's widely available, can they insist that employees are vaccinated against COVID-19?

Seamus: Well, this is a good question. You can imagine that there are a number of employers out there, and certainly probably a number of employees as well, if you think of those sort of close contact places of work, like the factories and the meat plants and places like that, where it has been very difficult and where we've maybe come across sort of a spike in numbers in relation to the transmission of the virus. So you could absolutely understand why that sort of question would come around.

 And I suppose where we're exactly at, at the minute, is that we know that we had the good news this week about the MHRS, which is the Medicines and Healthcare products Regulatory Agency in the UK, approved the vaccine for COVID-19. And we're aware also that behind the scenes there's been quite a bit of work that's already been done in relation to the rollout of the vaccine. And BBC NI did report that the first date for kick-off of the vaccine would be the 9th of December, so next week is what then we're potentially looking at here in Northern Ireland.

Now, we know that that's going to be sort of front-line workers or healthcare workers or hospital workers. And looking at the possibility of care homes and things like that maybe in early January. But certainly, the plan is to deal with the elderly and the most vulnerable in the first instance.

But the question as to whether employers can legally oblige or enforce their employees to take or get the vaccine, it's a difficult matter. In general, my view is that it's not possible for the employer to require or to oblige any employee to obtain the vaccine.

And I did note that even with the NHS staff, I did see the BBC NI had an interesting story that they had approached their staff with a survey and asked them would they take the vaccine or not. So certainly, from that point of view, the government are not making it mandatory in order for anyone to have to take the vaccine.

And similarly, here at a local level, maybe even those employees that are at most risk, at high risk in terms of in hospitals and places like that, there's no mandatory obligation to take the vaccine.

So I think from a legal point of view, it is difficult for an employer to enforce or to say that employees have to take the vaccine. And you do need to . . .

Scott: Sorry, Seamus. Obviously, you can't stick the needle in their arm or any of that kind of stuff. That would just be assault. But in a practical sense, I suppose there could be some kind of pressure put on people. But it almost reflects the poll question we had there, which was that just about half of people think a bubble of three is appropriate, and the others don't, for Christmas. And we don't know why they think it is or isn't. It could be because they think it's not enough, or they think because there shouldn't be any mixing at Christmas. But that reflects what's happening in society, I suppose.

There will be employers who will be saying, "I have lost a ton of business because people can't mix, people can't come into the shop, people can't socially distance, they're not going to work", and all those kinds of things. And they're saying, "I want you vaccinated because I want people being able to get back to normality". And you'll have others that will be saying, "Look, it's a human rights issue".

And we don't know what way the tribunals are going to go, if an employer were to turn around and say, "Well, look, if you're not vaccinated, we aren't going to pay you. You're not coming into work". Because presumably, there will be discussions around that at some stage. Not early on, obviously. But at some stage, some employers will be saying, "We want you back into work, but we don't want you back unless you're vaccinated".

Seamus: Yeah, absolutely. I mean, the big issue that I can see is that there's a civil liberties issue here and a human rights issue for people. And I'm sure we've all experienced this, that we've talked to people where they have said, "I'll be first in the queue to get a vaccine. I'm happy to take it". And there are others that will say, "I'm not", or others that will say, "I'm cautious. I'm going to let a lot of people take it first of all and see how it goes". So you do come across sort of a full coverage of where people stand in relation to it.

Big issue for me is that the government are saying that it's not mandatory. There's a respect there for people's civil liberties and for their human rights. And these issues, these sort of legal and ethical dilemmas as well that arrive, and very much the head and the heart issues, exactly like the poll there that we looked at. What your head tells you is sensible and then what you want to do in terms of your loved ones and everything else like that.

I think that the better approach is really to . . . and I know that the government are intending to look at some media information . . . is to educate and try to encourage employees to take the vaccine, as we've been told that the vaccine is safe. Then the point would be communication about educating and trying to encourage as best as you can and explaining to employees the benefits of getting the vaccine.

I think enforcement by an employer could bring about a number of legal issues. I think that there's a risk of potential discrimination claims on the basis of saying that it's against my religion, maybe, to take vaccines, or that I have a certain disability.

I mean, we did see during the week . . . and not that pregnancy is in any way a disability, but that was sort of . . . the advice is that pregnant women shouldn't take the vaccine. And then if you're an employer trying to enforce someone to take it, you could imagine the difficulties that that creates.

And then ultimately, as well, the bottom line is this is fresh. It's very new and we're putting our hands in the trust of the regulators that it's safe. But if you enforce them to get mandatory and say that an employees have to take a vaccine, and then it turns out in a number of months or in a year that studies find that it does cause damage, potentially the employer has a lot of liability there in relation to that and you could be looking at some sort of class action by employees if there are issues that arise.

So although it's great news and it's fantastic, and I think we're also keen to get back to our normal way of living, but there are these legitimate issues around it. So I think we do need to take a cautious approach.

I did read as well that employers were saying, "Well, it could be offered as a perk in work". And we've seen a lot of this recently where employers have offered to pay for the flu jab for employees, for instance. And for employers, that's about business continuity and making sure that the staff are protected in terms of their health.

But again, it's not possible to enforce that or to force an employee to get the injection. So I wouldn't foresee at all that .

Scott: Okay. Certainly. At Legal Island, we offer flu jabs to staff, and I know a lot of other employers do, but it's not compulsory. I suppose the difference is that with the flu, you tend to know you've got the flu and you stay in bed, whereas with COVID, you often don't know you've got it and you go around giving it to people unknowingly.

So we don't think it's going to be enforceable. There may be some differences depending on the sector that you're in, such as care work. You could see that. It may be driven by commerce. It may be that airlines turn around and say, "Look, unless you've got some kind of certificate", assuming you get a certificate, "that you've got the virus, then we're letting you on the flight", or, "You're not coming into this pub", or, "You're not coming into this nightclub", if they ever open again, "unless you've got a certificate saying that you've got the antivirus jab".

So we'll see what happens. But certainly, as it stands at the moment, your advice would be you can't enforce. You may encourage. You certainly should open up debate and have those discussions about legitimate queries about whether it's safe or not safe, whether it's good for some people or not good for others.

But I could see a further thing coming forward in the New Year where . . . You've seen all this thing on the internet where people get very opinionated and they go backwards and forwards and say, "Oh, you're destroying my life because you're not getting vaccinated", or, "You're threatening my life because you're forcing me to be vaccinated".

You could see those rolling out into the workplace where people are saying, "You're holding me back", and employees falling out or grievances arising because the supervisor who's maybe anti-vax says one thing, or the supervisor who's pro-vaccination says another thing. You could see those things arising in the workplace as we go through because it's going to affect everybody.

UK has bought millions of vaccines presumably because it wants 60-odd million to get vaccinated. You know what I mean? And you could see all those things arising in the future.


This article is correct at 03/12/2020

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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