News Analysis

Do you have a policy on employees being vaccinated for COVID-19?

by Alex Crimmins


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The COVID-19 vaccine rollout is underway. What is your board’s policy on ‘when and if’ employees need to take the vaccination? Despite many legal uncertainties, you will need a policy on employees being vaccinated for COVID-19.

Managers and directors of companies are asking the same questions: Can they enforce a mandatory vaccination policy? Can a company or organisation fire an employee if they refuse to take a COVID-19 vaccine?

The answer is – probably not.

In the US, for example, there is a lot of debate on this issue because only 54% of Americans said they would take the vaccine, which means 46% won’t.

For US employers, when considering a vaccine policy, there are many legal implications.

Things get even more complicated when it comes to the COVID-19 vaccine and other treatments that some people find intrusive.

Edith Pearce, the Philadelphia employment lawyer with Pearce Law Firm, says that these legal implications typically fall into two areas.

“There are exceptions for certain employees who should receive additional accommodations because of their sincere religious beliefs, or due to health conditions or disabilities that could prevent them from safely receiving a vaccination.”

However, Holly Helstrom, from Columbia University in NYC, says that if an employer is a private sector at-will employer, a COVID-19 vaccine policy is legal due to workplace health considerations.

“This is a product of how US labour law and the Constitution are written. Employers can and have fired employees based on lifestyle choices related to their health, including if they smoke or drink alcohol,” says Helstrom. She specialises in First Amendment rights for employees. “Refusal to get a COVID vaccine if your employer requires one could get you fired, and your employer would be within their legal rights to do so.”

Lucy Lewis, a partner with Lewis Silkin, says making vaccines mandatory for employees is fraught with difficulties. “If an employer could show that having a vaccine is the most reasonably practicable way of mitigating the risk of Covid-19, having carried out a risk assessment, it could in theory mandate the vaccination as a health and safety requirement.”
Employees who refuse the vaccination may be dismissed for a health and safety violation.

The Covid-19 is most likely to be a reportable disease in healthcare settings or other settings where RIDDOR regulations apply.

“However, the government is the largest employer in health and care settings and is not making the vaccination mandatory, so employers would need a strong reason for taking a different stance in their organisation,” writes Lewis.

If you work in the UK do you have to have the vaccine?

In the UK, making it mandatory for existing employees to receive the Covid-19 vaccination brings a host of legal complications for employers.

Mandatory vaccination has never been tested by UK law. Some employers may require the vaccine for their current employees, but it’s likely to be a minority of cases.

Also, employees in the UK can refuse vaccination for medical, pregnancy or belief reasons and employers need to understand they may face discrimination claims from employees with ‘protected characteristics’.

Do employees need to have the vaccine to go to work in Ireland?

In Ireland, companies and organisations are also assessing how the availability of a vaccine influences return to work plans.

Health and safety laws in Ireland impose duties on both employers and staff to maintain a safe place of work.

To comply with their duties, many employers will encourage employees to get the vaccine to reduce the risk of transmission in the workplace.

As the law stands, this approach seems the most appropriate way for employers to incorporate the vaccine into their health and safety planning.

While employers have a duty to provide staff with a safe workplace, the legal position on requiring staff to take the vaccine is not quite so clear cut.

Vaccinations are not mandatory for employees in Ireland.

A wide range of personal freedoms is guaranteed to Irish citizens by the Constitution, including the right to refuse medical treatment.

Making the vaccination mandatory could adversely affect employee relationships or result in discrimination claims based on disability or religion.

As a result, employers should consider involving employees and deciding how to explain their COVID-19 vaccination policy.

Currently, a business would face numerous legal risks if vaccination was mandatory.

In the event of an adverse reaction to vaccination, for example, employees may sue their employer for damages.

Disclaimer: The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.


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