The news that several COVID-19 vaccines have been developed—and one approved for widespread use in the United Kingdom (Pfizer-BioNTech)—has come as a relief to many. Such news has prompted consideration of the legitimacy of compulsory vaccination in the United Kingdom, particularly in an employment context.
It is clear that the UK government does not plan to introduce a mandatory COVID-19 vaccination programme. Health Secretary Matt Hancock has stated, “We’re not proposing to make this compulsory, not least because I think the vast majority [of] people are going to want to have it,” while Prime Minister Boris Johnson has declared that compulsory vaccination is “not the way we do things in this country.”
In England and Wales, the Public Health (Control of Disease) Act 1984 gives the government powers to prevent, control, or safeguard against the incidence or spread of infection or contamination. However, the legislation specifically provides that a person must not be required “to undergo medical treatment,” where ‘“[m]edical treatment’ includes vaccination and other prophylactic treatment.” The Coronavirus Act 2020 extends this prohibition to Scotland and Northern Ireland. Accordingly, the UK government cannot make COVID-19 vaccination mandatory.
As the government does not have legal power to enforce vaccinations, it seems unlikely that UK employers will be able to compel employees to be vaccinated against COVID-19. In limited circumstances, compelling vaccination may be advantageous because of the nature of the relevant industry or business—for example, where employees—such as those in the healthcare industry—are at a materially increased risk of contracting the virus due to the nature of the work that they undertake. The fact that the vaccine will be offered to frontline workers (i.e., those working in essential public services such as healthcare) first, along with those individuals who are most susceptible to the virus, serves to reinforce this claim that compelling vaccinations may be justified by business necessity.
Some employees may be reluctant to be vaccinated, particularly when the vaccine is in such early stages of its rollout. Other employees may have religious reasons for not wanting to receive the vaccine; requiring individuals to act in contravention of their religious beliefs may amount to discrimination under the Equality Act 2010. Such refusals to be vaccinated may undermine an employer’s ability to enforce a compulsory vaccination programme within the workplace.
Employers that feel strongly about requiring employees to obtain a COVID-19 vaccination may want to demonstrate why vaccination is required over and above other COVID-19 safety measures. This may be particularly difficult for employers to evidence if employees are able to work from home.
A possible risk-averse approach could be to inform employees of the benefits of being vaccinated and the positive impact that vaccination could have on the workplace. Employees can then make their own informed decisions about whether to be vaccinated. Nevertheless, sensitivity is key, and employers may want to consider the language they use in order to avoid allegations of undue pressure.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.