Whilst there is no legal provision that permits an employer to enforce workers to take one of the COVID-19 vaccines, some organisations are considering making the vaccine a condition of employment, with many more expected to follow. Therefore, what is the legal position in this area? In short, compulsory vaccines is a legal minefield and employers will need to be very careful how they approach the matter, so they do not breach any strict rules or guidelines.
Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974) an employer must take all reasonably practicable steps to reduce workplace risks to their lowest practicable level. Additionally, under section 7 of the HSWA 1974, an employee has a duty to cooperate as necessary with the employer to enable it to comply with any statutory requirements including reducing workplace risks.
Moreover, employees will want to be reassured that they are working in a safe environment. However, this is unlikely to extend to employees being legally required to take the vaccine in all business sectors and we will have to wait for further guidance from the Government on what measures an employer may be required to take.
The meaning of “reasonableness” is likely to depend on the business sector of the employer and the services it provides. In relation to hairdressing as it is not possible to social distance, there are strong arguments that a mandatory vaccination policy would a be a reasonable management request in the same way as it would apply to employees working in social care and the health service.
On the other hand, PPE will provide some protection for employees in the hairdressing sector which reduces the risk of transmission either to the client or the hairdresser. However, in the meantime a sensible policy would be to encourage all existing staff to be vaccinated. For new staff, there could be a general policy of requiring them to have the vaccine as a condition of appointment with a provision that allows exceptions to the general vaccination policy in special circumstances for example, where an employee is unable to have the vaccine for medical reasons.
A risk assessment should be undertaken in relation to an unvaccinated employee or prospective employee and following this, employers may be able to objectively justify that the requirement for an employee to have a vaccine is a proportionate means of achieving a legitimate aim, in this case protecting the health and safety of staff and customers.
It is unlikely that an “anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010. However, not all vaccines in production have released their list of ingredients and it is possible that gelatine may have been used in some vaccines or in its production process and therefore, an employee with certain religious beliefs or vegans may have religious or philosophical grounds for refusing to take the vaccination.
If an employee has been advised by their doctor not to take the vaccine on medical grounds, an employer’s requirement to take the vaccine may amount to disability discrimination. Even if the employee is not disabled, a Tribunal may find that the request to the employee to go against medical advice is an unreasonable request in any event.
An employee’s fear of needles (trypanophobia) may also amount to a disability and therefore the employer would need to consider whether it could provide alternative working arrangements.
Public Health England advice states that “women should be advised not to attend for vaccination if they are, or may be, pregnant, or are planning a pregnancy within three months of the first dose. Vaccinated women who are not pregnant should be advised to avoid becoming pregnant for two months after the second dose of vaccine”.
Therefore, a requirement to take the vaccine as a condition of employment for a pregnant employee, or an employee planning a pregnancy, is likely to amount to sex discrimination and pregnancy/maternity discrimination.
Personal data collected in connection with an employee’s vaccination records will be sensitive personal data or special category personal data and will need to be processed in accordance with GDPR. But is it legal to collect such data?
The answer to this is whether the employer, as a data controller, has a legitimate interest or legal obligation to collect vaccine information due to the nature of their business. A care home owner may well be justified or may become legally obliged to do so whereas for an office role, the requirements to have such information is less clear cut.
At first glance, an employer’s COVID vaccine requirement appears to be a ‘reasonable instruction’ to keep workers and customers safe. However, the position is far more complex and could raise numerous legal issues which will need to take into account the requirements of the employer and circumstances of the employee.
As the vaccine rolls out across the age groups, salon owners will need to keep abreast of the Government public health guidance in relation to the pandemic and start to develop their own COVID-19 pandemic policies to take into account the implications of the vaccine in the workplace. Whilst the arrival of the vaccine is a huge relief for everyone, the vaccine should be seen as the next chapter in the pandemic story and sadly not the end.
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