Potentially is the answer, depending on your work environment and the work you have to do.
It may be reasonable and therefore your employer might be able to insist that you are vaccinated to fulfil their duty of care to your fellow colleagues or service users depending on the job that you do. This might be the case if you have a job where you are dealing with people, especially vulnerable people. Normally this command and or insistence that certain employees have the COVID 19 vaccine, whether it’s Pfizer on AstraZeneca or another type of vaccine, could be justified under the legal banner of a ‘reasonable management request’.
Looking closer at an example, say you work in a service setting such as a care home, it might be considered a reasonable request that you have a vaccine to provide certainty that the home will provide protection to vulnerable residents. It might also be reasonably justified by your employer that the need to ensure that they can predict reliable staffing and manage rotas and thus in turn make a case that they are insisting on employee vaccination to achieve the aim of ‘service’ reliability.
It might be interesting to consider if a Vaccine mandate could still be justified for a non-service or non-contact type job, but a job that is still normally based in the care home. For example, imagine you hold the position of a secretary or bookkeeper for the home and normally would have worked in an office in the home. You might object and be unwilling or unable to get the Covid-19 vaccine and instead ask to continue to work from home. It would then be your employer to consider if your job could be reasonably done from home and or if their Vaccine mandate still stands.
Despite immunologists initially being unclear on whether widespread COVID vaccination ultimately limits the spread of the virus or it solely promotes immunity, at the time of writing, there are reports that initial studies in nations where vaccine roll out has been more extensive, show widespread vaccination impacting positively in a drop in COVID cases. Thus it is seems likely that widespread vaccination will decrease the spread of the virus as well as offering immunity.
So if this data develops as per the early studies, it might factor into an employer’s decision on whether they choose to mandate employees to be vaccinated. A reason for doing this might be along the lines of the earlier example of forecasting rotas and getting certainty that they can protect team, clients or customers and members of the public. So as a result they are able to demonstrate their business or service is reliable and safe as the world returns to normal.
It is anticipated that employers will create a number of policies to deal with expectations on the Coronavirus vaccination and these policies will likely deal with people who fall into the categories of being an ‘exception’ and also likely to cover how to notify your employer of non-compliant or non-vaccination.
These policies will hopefully deal with people that do not want to have or cannot have the vaccine. However, it is likely you will have to have a reason protected in law which forces your employer to think long and hard about whether they enforce the requirement for you to have the vaccine, if you can, or ‘deal’ with you in another way if you can’t. Reasons you might assert for not having the COVID 19 vaccine which should be considered carefully by your employer include;
- a disability or a condition that precludes you from getting the vaccine.
- a religious view or belief; ‘Veganism’ was recently tested as a belief, it might be that you are part of the ‘Anti-vaxing’ movement or train of thought and assert that you should be protected against dismissal and detriment because of this belief. At present there is no case law on Anti-vaxing beliefs, and the only way to determine if this is considered a valid belief will be to have it tested through an employment tribunal. This is the route you’d have to take in the event you believed you suffered detriment because of your anti-vaxing belief. Detriment could include, dismissal, harassment, victimisation or bullying.
- Pregnancy; again at the time of writing, pregnant women are not permitted the vaccine, however, this might change. However, as lockdowns and restrictions are lifted, employers will have to incorporate considerations with respect to COVID 19, into the typical and obligatory pregnancy risk assessment to ensure pregnant women are protected in the workplace, especially if they have not had the vaccine and are unable to get it because of their pregnancy.
- age; this pandemic has clearly affected the elderly more than the younger generation. It might be that an employer unintentionally discriminates or indirectly discriminates against the elderly or indeed the young in future employment decisions such as recruitment or policy when hiring or indeed applying vaccine policy.
- race; clearly the pandemic has shown a disparity in how people suffer from the effects of COVID. Statistically minorities seem to have higher death rates as a result of this pandemic. Employers will have to be very careful to ensure future COVID practices and vaccine policy does not inadvertently single out minorities.
While employers ponder their COVID 19 vaccination policy and whether they can and will require employees to get vaccinated, the other areas we hope your employers are looking at include;
- Existing capability and ill health policies for managing and supporting ‘long COVID’, and those employees recovering or dealing with the impact of long-COVID.
- Mental health support, stress and wellbeing that might tie into a robust remote/working from home policy
- Discrimination and performance on account of sex. The legacy of COVID and the resulting pandemic meaning home-schooling becoming the norm for large periods of time has arguably disproportionately affected women in work. Employers might be too keen to start performance or attendance procedures with women who have had to have time out or had to balance work and family during this unprecedented period. If your employer has indicated they are stating performance procedures against you at this time, consider if this could be indirect sex discrimination on the basis of a furlough request to allow you to manage home-schooling or because you have born the burnt of managing your children whilst still trying to hold down a job. We hope your employer would have compassion and understanding at this difficult time, however, too often experience that this is not the case.
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