Mandatory Vaccine: Can My Employer Impose Compulsory Vaccination?

Caragh Bailey
7 min read
Mandatory Vaccine from Employment Law Friend

In this article we compare the different approaches to the pandemic and differing cultural attitudes to a mandatory vaccine for covid-19, between the UK, the US and Italy: How did our response effect the employment market and what will be the knock on effects for employment law?

The initial response to the pandemic
Italy was already familiar with the principal of furlough as it was a fairly common scheme for extended leave in certain situations before the pandemic struck. Having a furlough system already in place, they were able to immediately roll out state funded furlough to any employee for any business except for top level managers, at the same time as bringing in a blanket ban on redundancy, again excepting top level managers. (These managers were invited to reduce their monthly salaries to help to sustain the business. The uptake for this was high, but this may be down to the fact that they were the only employees who were eligible for redundancy.)

The only way around this was if a business was facing a genuine closure, or, if the individual employee agreed to accept redundancy , with 15 months wages as redundancy payment. This demonstrated a choice to protect jobs rather than provide financial support to reskill. The effect of this choice, long term, has been to create a mass freeze of the job market, seeing no extension of fixed term contracts or natural progression into long term contracts.

Italian businesses, forced to keep their staff on through repeated lockdowns, are finding this unconstitutional and unsustainable. There is also considerable concern that a huge number of redundancies will take place across the country, when the ban is lifted in October 2021.

The USA is well known for its capitalist ideals, so banning redundancies and paying everyone to stay at home, never really fit into their agenda. Instead they pretty much left each company the freedom to be flexible and adapt as they see fit.

Their pre-existing statutes to protect employees from redundancy continued unchanged, but, they did introduce the Payroll Protection Plan (PPP) for companies to partially pay employees who were unable to work due to restrictions. They also have the Coronavirus Aid, Relief, and Economic Security Act (Cares Act) which pays individuals one off payments, to supplement state unemployment benefits for those unable to work. (As well as making loans to businesses).

Unemployment is comparatively low and their economy has continued to grow. The main focus now is on vaccinating the population and getting everyone back to work.

Here, in the UK, a ban on dismissals like the one imposed in Italy would have caused political uproar. However, despite furlough being mostly unheard of here before March 2020, the government has shown incredible support both for employees and employers. At the end of January almost 5 million people were enrolled in the scheme.

The main concern for the UK is whether our vaccination effort will be sufficient to avoid a flood of new covid cases when we all return to work at the end of the furlough scheme after the summer.

Currently the UK is ahead of Italy and the US, with over half of the population having received their first vaccination (20% have had their second) and managing to carry out 510, 000 jabs per day. But, will we see the introduction of a mandatory vaccine?

Mandatory Vaccine

Italy has been one of the first countries to introduce a mandatory vaccine. Their pre-existing law, Article 32, states that 'none shall be obliged to take medical treatment except by law', this is opposed by a statute which makes the employer responsible for the safety of its employees.

The new decree came after December 2020, when there was an outbreak in a nursing home in which 15 people died. It was found that 10% of the staff had refused vaccination. The employer took the decision to put those staff on paid holiday leave. This decision was upheld by court.

On the first of April the Italian courts decreed that vaccination would be mandatory for health workers in order for employers to uphold their responsibility for their safety. If they refuse, they are given alternative tasks (if available) or they will be suspended without pay for their own protection.

There is no mandatory vaccination for anyone else. However, some specific jobs may require the employee to be vaccinated in order to safely carry out their job role.

In order to protect individual’s choices, information regarding vaccinations is held by company doctors, not by the employers themselves.

In the USA however, there is a growing anti-vax sentiment. This has been fuelled by incidents of blood clots associated with the AstraZeneca jab. However, there are still no federal regulations regarding a mandatory vaccine.

The cultural value of ‘American freedom’ has been shown to clash with public health precautions, causing infection rates to rise with relaxed vigilance. While 60% of workers will probably or definitely get the vaccination, 28% would quit rather than have the jab.

The equal opportunities commission have stated that employers may impose a mandatory vaccine so long as:
  • They have a policy which specifies that an individual must not pose threat to rest of workplace.
  • They must not violate discrimination law

Disabilities and Religious beliefs require a ‘reasonable accommodation’ to be made by the employer. The question to be disputed will be whether the accommodation an individual requests represents an unreasonable hardship on the business.

The approach that most seem to be taking is to encourage and incentivise employees to take the vaccine of their own volition. Meanwhile, each state will be making its own decision whether to introduce laws banning mandatory vaccine policies and the use of vaccination passports, under rising pressure from lobbyists.

In the UK, there is no mandatory vaccine. Currently, there is still considerable debate about whether the employer should be able to impose compulsory vaccination. The position which appears to have the most support at present is that it would not be lawful to push a mandatory vaccine except for in health work situations, much like we have seen in Italy.

Similarly to America, religious beliefs and disabilities are protected by anti discrimination law. Employers cannot place you at a disadvantage based on any protected characteristic and must make reasonable adjustments to accommodate them. Again, the point of dispute will be, what is 'reasonable'?

There are further implications regarding age and pregnancy discrimination:
Will the older generation be at an advantage in the job market, having been vaccinated first? Would this constitute age discrimination?
Do pregnant people have additional rights to refuse the vaccination, due to concerns for the wellbeing of their child?

The issue for UK employers is that they too have a duty to protect the safety of their employees. Where being unvaccinated poses a risk to the employee, they may be able to have them work remotely, or in an alternative location. However, this may require a change to their employment contract, which the employee would have to willingly consent to.

At the same time, moving one employee to a lower risk location may put other employees at risk. Who else is working in that low-risk location? Is it someone who cannot have the vaccine due to health reasons, would their safety be implicated by having to work with an anti-vaxxer?

At present, your employer cannot make you have a mandatory vaccine. However, it looks like employer may be within their rights to make it a condition of new employment, so long as they do not refuse employment to someone who has not had the vaccine due to any protected characteristic.

We will be monitoring any developments in statute in the coming months, especially regarding the end of the furlough scheme in September.

Do you have a problem with mandatory vaccination at work?
There is much more to winning your case than simply being in the right, our specialist employment solicitors know all the laws and tactics, to make sure you get the best chance at a fair settlement. Get in contact with us and see how we can help.

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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice you can click here to organise a meeting with one of our panel of employment law solicitors.

This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
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