Mandatory vaccination policies – the latest position following developments in the US

30th November 2021

In September 2021, President Biden announced plans to introduce mandatory vaccination for employees in the United States. Rules implementing these plans were published on 4 November 2021. What do these rules mean for employers in the UK?

What is the position in the US?

Under federal rules issued by the Occupational Safety and Health Administration (OSHA) in the US on 4 November 2021, all businesses in the US with 100 or more employees will be required to introduce policies requiring all employees to be fully vaccinated by 4 January 2022 or to wear face masks in the workplace and undergo weekly testing if they refuse vaccination. Fines of around USD 14,000 will apply for individual breaches and up to USD 136,000 for total disregard of the rules.

The unvaccinated will need to start wearing masks in the workplace from 8 December 2021 and must produce weekly negative test results from 4 January 2022. Anyone testing positive is banned from the workplace. Employers are not required to provide face masks or testing facilities for employees but should allow paid time off to attend vaccination appointments and sick pay for any side effects following vaccination.

The rules do not apply to any lone workers, or those working exclusively at home or outside. There are potential exemptions for employees with religious beliefs and those with disabilities or medical conditions that prevent vaccination.

Stricter rules apply to federal contractors, who don’t have the option to elect for the alternative of weekly testing. Employers in that sector have leeway to decide on enforcement techniques for such employees and these are likely to depend on the availability of working from home options. Non-compliance with the rules could result in the loss of federal contracts and non-vaccinated employees could be refused access to federal workplaces.

What does this mean for the UK?

At present, mandatory vaccination rules only exist in England for those working in care homes, who must have been fully vaccinated by 11 November 2021. Such rules will also be extended to health and social care workers, including doctors, nurses, dentists and domiciliary care workers from April 2022. Scotland, Wales and Northern Ireland do not currently have any mandatory vaccination rules.

There are no requirements for other private sector employers to introduce mandatory vaccination policies but many, particularly those with US parents or other strong links to the US, have been considering the viability of such rules in the different legal landscape in the UK.

What are the issues UK employers need to consider?

As employers in the care home sector are already aware, the issue of mandatory vaccination in the UK is extremely sensitive. The UK does not, culturally speaking, have a history of mandating vaccination, unlike some other European countries and the US. If contemplating a mandatory vaccination policy, employers need to consider what action they would take if an employee refuses.

While like the UK, the US has anti-discrimination laws, the US policy clearly provides exemptions for those with religious beliefs and relevant medical conditions. There is the potential in the UK for the risk of discrimination claims should employees be subject to detriment or be dismissed as a result of a refusal to be vaccinated if a blanket policy is adopted. The merits of such claims will depend on the employee’s personal circumstances (e.g. whether they are suffering from a disability or have a religious or philosophical belief within the meaning of the Equality Act 2010). Generally, those who are doubtful about the safety of the particular Covid-19 vaccine, or follow “hoax” theories, are unlikely to be protected under the discrimination legislation.

In contrast to the US, where most employment is “at will”, employees in the UK with two or more years’ service are protected from unfair dismissal by employers and so businesses would also need to follow a fair process and have a fair reason to dismiss anyone refusing to be vaccinated. Depending on the particular environment, it may be possible for an employer to make out a case that dismissal is for “some other substantial reason” or conduct in failing to follow a reasonable management instruction, both of which are potentially fair reasons. For example, it may be reasonable in private facilities such as chiropractors, beauty salons or in hairdressing, which may all necessitate close contact with customers who are elderly or who have medical conditions, to require vaccination to provide extra safeguards to customers. However, it is harder to justify such requirements in office-based environments due to the availability of alternative safeguards such as social distancing and mask-wearing. Before considering any dismissal, employers would also need to consider whether any less severe measures are available, such as working from home, wearing PPE or varying roles to reduce the risk to others to avoid claims.

From a data protection perspective, while the UK Information Commissioner has stated that it is possible to check the vaccination status of employees (in contrast to other jurisdictions, such as the Republic of Ireland), this is subject to having a lawful ground to do so. It may be possible to make out such a ground, for example, by relying on legitimate interests such as protecting the health of staff members, and protecting the safety of the working environment and reputational standing, but this is less compelling than, for example, in an environment where an employer is also looking to safeguard the health of customers or service users (who may be particularly vulnerable).

As a result, it is likely to be far less risky from an employment perspective in the UK to adopt other measures such as continuing good hygiene practices to limit the transmission of Covid-19 in the workplace, but there will inevitably be some situations in which a vaccination policy could be effective. Speak to our experienced Employment Team to find out more.