Many employers will be hoping to return to the workplace in 2021 and the newly approved vaccines are likely to play a major role in this push. In the U.K., the National Health Service (NHS) has begun its rollout of the COVID-19 vaccine. The rollout will initially focus on nine high-priority groups (including people aged over 50 and the clinically vulnerable), so the majority of the working population may not receive the vaccine until late summer or early autumn. It is unlikely that the vaccine will be available in the private sector until the NHS has completed a significant part of its rollout, which means employers are unlikely to be able to purchase and administer it to their own workforce for the foreseeable future. As such, employers will have to rely on the NHS rollout. The NHS is offering the vaccine on a voluntary basis and therefore individuals can decide whether or not to have it.
So, can employers mandate that their workforce receive the vaccine? Employers have a legal duty to ensure the health and safety of their workforce as far as reasonably possible, so such a requirement would appear to be an effective means of satisfying this duty. However, whilst there may be certain settings where such a requirement is reasonable — for example, in health care or other high-risk areas — employers should be very cautious about pursuing a policy of mandatory vaccination since this could have a number of legal implications.
Primarily, such a policy could expose an employer to claims, including for discrimination and/or constructive dismissal if an employer were to take detrimental or disciplinary action because an employee refuses to be vaccinated and such refusal is related to a characteristic that is protected under U.K. discrimination law (namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation). For example, there is a risk of maternity or disability discrimination where employees who are pregnant or suffering from a medical condition that amounts to a disability are not able to have the vaccine and are consequently treated less favourably by their employer than employees who have had the vaccine. Likewise, such a requirement could also amount to age discrimination if younger employees, who are likely to be the last category of people being offered the vaccine as part of the NHS rollout, are treated less favourably than older employees who have had the vaccine.
A policy of mandatory vaccination could also infringe employees’ right to privacy under Article 8 of the Human Rights Act 1998. Technically an employer may be able to justify such a breach, but this is likely to be difficult where less personally invasive measures are available to employers to maintain the health and safety of their workforce, such as social distancing and the wearing of face coverings.
Employers should also consider the data protection implications of mandating vaccinations since holding data on whether an employee has had the vaccine is likely to be considered a special category of data under applicable data protection law (meaning that it needs more protection because it is sensitive). In order to lawfully process such data, there must be a lawful basis for the processing, and additional conditions and supporting documentation must be put in place, including conducting an impact assessment to identify and minimise any risks.
Whilst a policy of mandatory vaccination may present difficulties from a legal perspective, employers may want to put in place nonmandatory guidance about the vaccine to encourage their employees to have it. Additionally, employers should not rely on vaccination to replace other protective measures in the workplace, such as social distancing and the wearing of face coverings, and should continue to assess their workplace risks as the pandemic unfolds.
Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.