Speaking to ITV’s Robert Peston, justice secretary and lord chancellor Robert Buckland said that, although he thought amendments to existing employment contracts were unlikely, employers might insist new workers be vaccinated.
“I’d be surprised if there were contracts of employment existing now that did make that approach lawful,” he said. “Frankly the issue would have to be tested. I can see that in particular work environments the desirability of having a vaccine is going to be higher than in others.”
Vaccines are not mandatory in the UK and government guidelines state individuals “must be given enough information to enable them to make a decision before they can give consent”.
This was recently reiterated by Prime Minister Boris Johnson who said the UK government will not introduce domestic vaccine passports. “Taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one,” a Downing Street spokesperson also said.
Vaccines minister Nadhim Zahawi stated that vaccine passports would be “wrong” as the UK is “not that sort of country”. However, he also told the BBC that some companies might introduce their own policies: “It’s up to businesses what they do, but we don’t yet have the evidence of the effect of vaccines on transmission.”
Pimlico Plumbers, for example, made headlines after its founder and CEO, Charlie Mullins, seemingly suggested the introduction of a “no jab, no job” policy. The company has since clarified its stance saying: “We will, when vaccinations are readily available, make having one a condition of employment for all people who are able to have the vaccine safely.”
Also attracting media attention, Barchester Healthcare, which runs more than 200 care homes, said in a statement that it is, “doing all we can to reassure and encourage those [staff] who are a little more reticent to have the vaccination, and we are also ensuring that all new staff must have the vaccination”.
Writing to the care minister Helen Whately earlier this month, UK trade union UNISON urged the government to “send a strong message to employers that putting pressure on staff to take the vaccine as a condition of their work is totally unacceptable”.
“Companies would do better to concentrate on informing staff about the benefits of the vaccination, rather than intimidating them,” said UNISON’s general secretary, Christina McAnea.
Employers may be limited to encouraging and potentially incentivising employees to get vaccinated
A report in the Financial Times, however, suggests UK companies are actively seeking legal advice on vaccination-dependent employment contracts for both new and existing employees.
By contrast, a recent survey of more than 1,800 respondents found a majority of US employers are wary of enforcing mandatory vaccinations due to fears such a policy could hurt staff morale, damage workplace culture, and lead to litigation.
“In the US, separate from the legal concerns, there are numerous other concerns employers considering a mandatory vaccine must consider,” Daniel Kadish, an associate and leader in Morgan Lewis’ covid-19 compliance and counselling team, told IEL.
“First, some employees may push back for a variety of personal reasons and mandating the vaccine can cause employee relations concerns. Second, there are logistic issues that employers must resolve, particularly if they plan to provide the vaccine on site, including how to get and store vaccine doses, having trained professionals administer the vaccine, and tracking and properly maintaining employee health data.”
Kadish also highlighted that, if the vaccine is mandatory, then the employer may need to provide pay or time off for the period when the vaccine is administered.
“Both the Pfizer and Moderna vaccines require two separate doses a few weeks apart and, in the event out-of-pocket costs are incurred, an employer that requires an employee to get vaccinated will likely be responsible for reimbursing those costs,” he said.
It is for these reasons, Kadish explained, that most US companies appear to be recommending employees be vaccinated without yet mandating it.
“Although vaccine guidance and supplies vary widely by country, in many countries, vaccines are only provided by the government directly and employers are not able to mandate that employees get vaccinated, so employers may be limited to encouraging and potentially incentivising employees to get vaccinated,” he added.