Legal and HR experts in the UK and US weigh in on whether employers should enforce workplace vaccination policies
We catch up with employment experts in the UK and US as we consider whether employers should be taking a stance on employee vaccination, and what they should be prepared for with a return to offices on the horizon.
The rollout of coronavirus vaccines around the world has given marketing businesses a shot of optimism that their teams may soon be back in offices that have largely laid dormant for the last year. But the return of staff – some having been inoculated, some not – could potentially pose a HR headache for employers and workers alike.
Can (and should) workplaces be encouraging or insisting that employees are vaccinated before they return? Could being vaccinated against Covid-19 become a company policy?
Richard Moore, a UK-based employment specialist at global firm Lewis Silkin, suggests that it would be wise for companies to have a policy – or at the very least a position – on employee vaccination prior to the gradual reopening of workplaces.
“Our view is that employers should be encouraging employees to get vaccinated. Under the codes for health and safety in the workplace, employers are obliged to do whatever they can to reduce workplace risks. So by encouraging the uptake of vaccination among employees, they not only protect themselves but everyone else in the workplace – and that is one way to reduce the risk of catching and spreading the virus.”
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Whether or not employers should make it mandatory for staff to get vaccinated is, however, a little more complicated.
“There is nothing to legally stop an employer introducing a new policy or tweaking contracts to implement a requirement that employees are vaccinated,” says Moore. ”But there are a whole host of potential issues in doing so.”
In the UK, following the vaccination of key workers and those who are more vulnerable due to health reasons, the vaccination scheme is now being rolled out in accordance with age range. Therefore, a large percentage of the workforce will not be able to be vaccinated for some time, rendering a mandatory vaccination policy somewhat futile.
But Moore also stresses that a mandatory vaccination policy could lead to claims of unfair dismissal on a number of other grounds.
“A blanket requirement on vaccination for employees doesn’t take into account people’s individual circumstances. Some may object to the vaccine on religious grounds, or because of a deeply held philosophical belief. And then there are people who can’t have the vaccine for medical reasons. If you impose a requirement, you could be discriminating against people who cannot comply for many valid reasons.”
The issues around a mandatory vaccination policy are largely the same in the US according to Mark Goldstein, a partner in Reed Smith’s labor and employment practice. He says the FDA has “yet to confirm whether or not these kinds of requirements would be permissible”.
This is likely because the US vaccination program is being organized on a state by state basis – which, as Goldstein explains, means that most states haven’t announced the progression of the rollout beyond the vaccination of key workers and the most vulnerable people. Therefore, companies with offices or premises in multiple states would also have to take into consideration that access to the vaccine may vary in different locations.
Hopefully, Goldstein says, if the FDA was to take the position that a mandatory vaccination policy for employees was inadvisable, then further guidance around encouraging employees to get vaccinated would be issued.
Outside of a mandatory vaccination policy, he says the other primary approach that employers are considering is an incentive-based model. “This could include some kind of benefit or perk that would encourage employees to get vaccinated. It could be some sort of income perk, like a gift card, or it could be paid time off or even cash incentives.”
There could, however, be potential legal and ethical issues around incentivizing employees to get the vaccine too, says Elissa Jessup, an HR knowledge advisor at the Society for Human Resource Management.
She says that, currently, there is limited legal guidance about appropriate incentives to employees. ”If an employer provides incentives for employees to get vaccinated as part of an employer’s wellness program, it may be a violation under the Americans with Disabilities Act.
“In addition, there is some concern about potential discrimination claims if incentives are provided to employees who get vaccinated, but those employees who have an accommodation don’t receive an incentive because they cannot receive a vaccine. Some legal guidance has indicated that if an employer does provide an incentive, it should be minimal so it isn’t viewed as being coercive.”
With so many considerations to be taken into account by a company taking a stance on employee vaccination, all parties agree that best practice in the short-term would be for employers to read the room in each workplace and make decisions on a case by case basis – particularly in the US where the rollout of the vaccination program varies by state.
Goldstein says that what one employer thinks is best for their workforce might differ greatly from another employer, and that this will also vary according to geography. ”Employers will really have to take the temperature of their workplaces before deciding what kind of policy or approach to implement. There’s certainly no one-size-fits-all approach.”
Moore agrees that a similar approach would be sensible in the UK. “The employer has a duty to look after their employee’s health and safety and to take reasonable steps to reduce workplace risk in this area. So they should focus heavily on risk assessment and consider the risks particular to their workplace.
“Having a blanket approach to an entire industry or sector is difficult because every workplace is different. The makeup of employees will be different, the physical layout of the premises will be different, so carrying out risk assessment specific to your organization is key.”
And regardless of whether or not a company vaccination policy is mandatory or voluntary, all parties agree there also needs to be a further dialogue with staff on the terms around getting vaccinated, and what will happen after the fact.
Jessup says that if a policy is mandatory, “an employer should consider a reasonable timeframe for employees to be vaccinated – with, of course, exceptions of employees with a reasonable accommodation“. Will there be time off to get vaccinated? Will the employer require proof of the vaccination?
“If voluntary, an employer may wish to encourage employees to receive the vaccinations and determine if the organization will cover the cost or allow time off during work hours to get it.”
Jessup and Goldstein both emphasize that employees should have clarity on what might happen if they were to have adverse side effects to the vaccine, such as whether or not they would get paid time off to recover. Employees should also be made clear on the procedure if an unvaccinated colleague brings Covid-19 into the workplace.
Just as the outbreak of Covid-19 presented employers with numerous unforeseen challenges, the way back to normality will be similarly fraught. With a legal and ethical obligation to keep their employees safe and healthy in the workplace, employers ought to proceed with diligence when considering what a return to the workplace will look like.
At the very least, ensuring that workers are afforded paid time off to receive the vaccine and that they know they will be paid for any time off should they suffer adverse side effects would give them a viable choice, regardless of the position the employer ultimately takes.
Check out The Drum’s special Health hub, which examines how the key players – from health agencies to pharma firms to brands – are doing their part to return the world to normality.