26th January 2021

COVID-19: vaccinations, employees and the law

Can health workers be forced to vaccinate?

The biggest vaccination programme in NHS history has been launched across England, with delivery to employees in the health and social sector a top priority. This is a momentous event and a huge moment in the battle with COVID-19, but it’s not without complications.

The government have now announced that COVID-19 vaccinations are to become compulsory for staff in care homes for older people in England.

As a recent survey shows that around 95% of UK doctors have now had at least one vaccination, BMA Law looks at whether employers within the health and social care sector could reasonably insist on their employees to get vaccinated, and the implications of doing so.

What does the law say?

Medical treatment is only lawful with an individual’s informed and voluntary consent. There is no statutory regime that could force an individual to get vaccinated.

As it stands, current legislation provides that any measures imposed by the UK government on individuals to prevent, control and mitigate the spread of infections and contamination, may not include requiring an individual to undergo compulsory medical treatment, including vaccinations.

There is currently no exception to the law that will allow an employer to force their employees or workers to get vaccinated, as ultimately individual consent is still required.

This freedom to choose may prove to be problematic for employers within the health and social care sector, who will be keen to protect the vulnerable people who interact with their staff.

Employee Immunisation Programme

Employers have a duty to protect the health, safety and welfare of their employees and other individuals who interact with their business. They must take every reasonable step to make sure that their employees and others are protected from anything that may cause harm, and effectively control any risks to health that could arise in the workplace.

Employees in the health and social care sector have a duty of care towards their patients and the vulnerable. This duty of care includes taking reasonable precautions to protect themselves from communicable diseases, including by appropriate vaccinations.  Healthcare workers not exercising this duty of care would place themselves and their patients at risk, along with their colleagues and anyone else they interact with.

Employers should consider completing a COVID-19 risk assessment (see the guidance here). Employers in the health and social care sector will need to pay particular attention to the duties mentioned above and review any immunisation needs identified in their COSHH risk assessment when carrying out their COVID-19 risk assessment, and identifying effective COVID-19 control measures. They could reasonably rely on those duties when considering what measures to implement to encourage COVID-19 vaccination take up.

Public Health England (PHE) are aware of the issue and have been quite proactive with their guidance. The Green Book provides that employers of healthcare and laboratory staff need to be able to demonstrate that an effective employee immunisation programme is in place. The Green Book recommends that the programme is managed by occupational health services, with an appropriately qualified specialist. The employer has an obligation to pay for this service.

The Green Book was updated in December 2020 to include a new chapter on COVID-19 (which you can read here). This new chapter includes recommendations that frontline health and social care staff receive immunisation for COVID-19. This includes staff involved in direct patient care, non-clinical staff in secondary or primary care or community healthcare settings, and laboratory and pathology staff.

Healthcare employers will already have an immunisation programme in place for routine immunisations such as tetanus, diphtheria, polio and MMR. PHE now recommend that these immunisation programmes are updated to include the COVID-19 vaccination. They have even published a COVID-19 vaccination guide for healthcare workers (see the guidance here).

Terms of Employment

The contract of employment for health and social care employees may include a broadly drafted clause that makes medical treatment, or more specifically vaccinations, a condition of employment. Employers could rely upon this clause to encourage health and social care employees to get vaccinated.

But what to do if there is no such condition? Employers of frontline staff could consider proposing a change to the contract of employment, to introduce a requirement that the relevant employees must have up-to-date COVID-19 vaccinations to access close contact and clinical areas.

If the employee does not agree to the proposed change, the employer should consider all available options, including moving the employee to a non-close contact (e.g. telephone and remote triage) or an entirely non-clinical role. However, this may not be practical or even possible in all situations.

If the employee cannot be moved to remote/non-clinical work, and the changes cannot be agreed,  employers may be able to force the change by dismissing upon notice and offering to rehire the employee under a new contract of employment that includes the relevant provision. But this is a drastic course of action and obviously does not come without risk. Employers should ensure they follow a fair dismissal procedure, and should seek legal advice before serving notice of dismissal on the employee.

Indirect Measures

Of course, there are less confrontational approaches available, too. Employers may decide to implement certain measures that would indirectly encourage employees to get vaccinated. Actions could include restricting staff movement or duties unless they have been vaccinated. These would need to be very carefully considered before implementing. The last thing employers want is to put themselves at risk of discrimination claims.

All employees are protected against discrimination related to a protected characteristic, including age, disability, pregnancy and religion or beliefs. For example, vegans or employees from various religious groups may object to a vaccine that contains pork gelatine. Therefore the components of the vaccine will also need scrutiny.

The discrimination in this context would be ‘indirect discrimination’. (‘Indirect discrimination’, arises in circumstances where a provision, criterion or practice applies equally to everyone but in practice has the effect of disadvantaging someone with a protected characteristic).  However, it is possible to argue that the differential impact is justified if the employer can show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim such as, protecting the health, safety and welfare of individuals.

In the context of the health and social care sector, it would not be out of the question for an employment tribunal to hold that the requirement for relevant staff to have received a vaccination is a proportionate means of achieving a legitimate aim –  protecting the health of patients and employees. This would especially apply where some patients or employees might not have yet been offered the vaccine, or who may be unable to receive the vaccine for medical reasons.

Conclusion – educate, don’t enforce

It’s hard to argue against vaccination as the most effective way to combat the COVID-19 pandemic and save lives. That said, it’s vital to get an individual’s genuine, voluntary and informed consent before they are vaccinated.

Aside from the obvious human rights concerns of forcing employees to be vaccinated, employers could put themselves at risk of discrimination claims, and would struggle to effectively force them to get vaccinated.

However, in the context of the health and social care sector, it’s likely that any measures to encourage COVID-19 vaccination will be considered reasonable and proportionate to protect, not only the employee, but the clinically vulnerable.

This puts the healthcare sector in sharp contrast to many other sectors, where employees can more easily and effectively use PPE, maintain social distance and work from home to protect everyone.

By far the safest option in the health and social care sector is to give employees the freedom of choice, providing the support and information they need to help them make informed decisions.

For more information, get in touch with BMA Law.

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