covid vaccine employment law

Should It Be Mandatory for Employees to Get COVID-19 Vaccinations?

The British government is leading the world in giving as many people as possible a first vaccine dose with another shot in six months. The Oxford-AstraZeneca vaccine is the most affordable inoculation against COVID-19 in the world, costing less than £3 per dose and may be stored in simple refrigerated containers instead of the ultra-cold freezers required by the Pfizer-BioNTech and Moderna vaccines.

This experimental doctrine in speeding up vaccinations could alleviate the suffering wrought by the Covid-19 epidemic, not just in killing hundreds of people each day in Britain but also the economic suffering and long-term damage any further lockdowns will do to society. More people can be inoculated by prioritizing supply to give everyone their first dose instead of stockpiling to reserve each receiver for two doses after 3 weeks for the 90% effectiveness shown in trials.

The effectiveness of the AstraZeneca vaccine after one dose

Without the second dose, the vaccine is noted to be 64.1% effective in the short term, and it takes time for the body to develop the viral antibodies to immunize against the virus.

Those who take the vaccine are not considered safe until after 14 days of the shot. The vaccine can be 70% effective after 21 days and before the second dose is given, and 80% for three months between shots.

However it was considered beneficial for society as a whole for more people to be given partial protection of a single dose for the time being while production ramps up. This would lighten the toll on severe hospitalization rates.

The UK government had announced that already over 4 million people had been inoculated and a target of 15 million high-risk people to be vaccinated by 15 February. The sooner that most of those at highest risk of the coronavirus are insulated from its dangers, the sooner that more of the low-risk population can resume business as usual.

Which begs the question: should employers then help out the initiative by making vaccinations mandatory for their employees to be sure that no one they are in contact with would be put in danger?

Reasons why this is not a good idea

Employers have no statutory right to require employees to be vaccinated. Even healthcare employers need to have a contractual clause to require employees to be vaccinated or state that it is a reasonable order of management to have the vaccination.

If you are considering the legality of management mandating a vaccine shot before being allowed to return to work, it cannot be anything but a volunteer action. Here are some of the reasons why such a top-down decree may be troublesome.

  • This amounts of a change in the terms and conditions of employment

Management cannot unilaterally change conditions in the workplace. They must inform and consult with a trade union, and may face resistance from a unilateral change in employee terms of pay, hours of work, and holidays.

Employees who are concerned about the safety of the new vaccine or feeling such an imposition no matter how well-meaning is a threat, cannot be compelled without incurring significant legal risks.

  • This may be a human rights violation

Surprising as it may sound, this could run afoul of the Human Rights Act 1998, which states that

a public authority cannot interfere with a person’s right to private and family life” under article 8.

This includes protections for physical and psychological integrity, which also covers compulsory medical treatment.

Any compulsory medical treatment always carries legal risk due to the dangers of misdiagnosis and medical liability.

However, Article 8 is a qualified right, which means a public authority may interfere with this right if it is ‘in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

A private enterprise might not count, but those who work with the NHS and governing bodies may fall under the public authority umbrella.

But even then, an employee might still find the inclination to object against a mandatory vaccination order under article 9, which covers

“the freedom of thought, conscience and religion. … a person has the right to choose if they want to undergo treatment, even where refusal to accept a particular treatment might have a fatal outcome.”

Personal Injury Liability

Another unnecessary issue is the risk of the employee filing a claim for personal injury if the vaccination caused an adverse effect. If the vaccination had been administered under the orders of a third party, there can be no risk of an employee bringing a personal injury claim against the employer and obtaining compensation that way.

Any refusal for an exemption to take the vaccine must be well justified and documented.

Reducing coronavirus impact through non-forced vaccination policy

It is difficult to discipline a worker who refuses the vaccination on religious, moral, or medical grounds. Potential issues to consider with this approach are

  • Discrimination again disabilities

Certain individuals with lowered immune systems are not suitable to receive the vaccine. Similarly, some people who have allergies might not be safe for vaccination. In such circumstances, it is best to find a way to shield them from danger while allowing them to perform their duties as best as they are able.

  • Employer Responsibility for the health of all employees

If it can be said that the aim of a mandatory vaccination requirement is proportionate due to being imposed only on new employees, after having consulted with relevant parties, for the protection of the health and safety of vulnerable patients the employees may often come into contact with, and with an exemption for those with medical or other reasons to refuse the vaccination – then the vaccination requirement can be filled without being onerously mandatory.

  • Religious and moral objection

Some employees may have religious or moral oppositions to being vaccinated, and these might fall under protection religious or philosophical beliefs. A fear of the untested vaccine should not be forced but overcome through logical persuasion, and measures taken to shield them and other employees from potential dangers while conditions are still considered unsafe for covid infection.

The NHS Mass Vaccination Programme

If even the government cannot force someone who refuses vaccination, how can the target of high-risk inoculations be met without forcing them to take the vaccine?

The answer is that older people and care staff have the priority to receive the vaccine. The vaccine is not available to private suppliers and it is unlikely for anyone to jump the queue if they can afford it. The vaccination is not compulsory, the penalty is simply continuing to live with the annoyance of shielding, social distancing, face masks and all other restrictions that everyone had to deal with for most of 2020.

Elderly home care residents have the highest priority due to the high risk of death correlating with old age. Frontline health and social care workers next, for much the same reasons, then those of age 16 to 64 who are at highest risk of death from Covid-19 due to underlying health conditions. It is easier to see it from the benefit, i.e., not dying.

Then incrementally working down from those aged 80 and over and then 65 and so on, until everyone over 50 have received inoculation, to represent 99% of preventable deaths from Covid-19.

With the ordered 100 million does of the Oxford/AstraZeneca vaccine, this is enough to inoculate 50 million people. The more expensive Pfizer/BioNTech vaccine could cover the rest.

Talks of this being a mandatory government overreach is what we may call “fake news”.

Posted on behalf of HH solicitors in North Shields UK.