Workplace vaccination: sanctions or rewards?

Background

The emergence of the more infectious omicron variant of COVID-19 has prompted a range of measures across the world to combat its spread. In the UK this has involved a combination of accelerating and extending the vaccination programme (notably by rolling out boosters to the whole adult population) and a tightening of the rules on mask-wearing, self-isolation, and international travel. Most recently, on 8 December, the Government announced that it would be invoking “Plan B” in England. That involves a return to the working from home guidance, more extensive rules on face masks, and introducing vaccine “passports” for certain venues. Similar steps are being taken in the rest of the UK.

A number of European countries have already made vaccination a condition of deployment in a range of public service roles, notably the health sector. In England, it is already a condition of deployment in care homes, and the Government is planning to introduce similar requirements across the health and wider social care sector from April 2022 for front-line workers.

It is only in recent weeks that “compulsory” vaccination has been on the agenda – ie fining adults who are not willing to be vaccinated, and who are not medically exempt. On 1 December, the President of the European Commission, Ursula von der Leyen, called for a discussion in the EU on this issue in response to the omicron variant. Such a requirement is due to take effect in Austria in February next year, and discussions are under way in Germany about similar proposals. However, the health secretary Sajid Javid has recently ruled out introducing any such measures in the UK.

Developing a vaccination policy

Employers need to make sure that their vaccination policies reflect the measures central and local government is taking in their sector and in the communities in which they operate. For multinational companies operating in the UK, that could also mean taking into account actions that are being taken in other jurisdictions where their operations are based.

The rapid spread of the omicron variant has been a salutary reminder that the pandemic is still very much with us, and most governments now have a range of restrictions that they are able to switch on and off at very short notice. That said, it is still possible for employers to develop a general approach to vaccination in the workplace which is flexible enough to take into account future changes in vaccine deployment or new economic or social restrictions.

Making vaccination a condition of continued employment

When COVID vaccines first became widely available, many employers were considering making vaccination a condition of continued employment, subject to suitable medical exemptions. However, the weight of best practice guidance (for example from ACAS and the CIPD) recommended encouragement rather than compulsion. As well as the effect on staff morale, they pointed out a number of pitfalls with a mandatory approach, including dealing with data protection legislation and the risk of unfair dismissal and indirect discrimination claims.

Over the past year many employers have refined their position, engaging with employees about the consequences of not being vaccinated (for example where their role involves international travel, or where vaccination has an impact on their obligations to self-isolate) without making vaccination an absolute requirement. Others anticipated the Government’s measures about vaccination in the health and care sector, limiting the requirement to be vaccinated to certain specific roles where they came into close contact with vulnerable people.

Encouraging vaccination take up

There are number of ways employers can encourage vaccination take up. Unlike the annual flu vaccine, it is not currently possible to offer workplace vaccination outside some health and care settings, but employers can take other steps to encourage staff to get vaccinated. This could include allowing staff paid time off during working hours to attend vaccination appointments, and enhancing occupational sick pay so that employees are not financially worse off if they need to take time off work to deal with side-effects.

More recently, perhaps in recognition of the legal complexities of making vaccination a condition of employment, some employers are considering rewarding employees for taking up any COVID vaccinations for which they are eligible with a modest cash bonus or other one-off benefits. Such an approach is not risk free – there still data protection and indirect discrimination concerns – but the risks are relatively low compared with imposing employment-related sanctions on unvaccinated staff.

Any vaccination incentive scheme would need to be carefully communicated to address possible feelings of unfairness from the small minority of staff who are not able to have the vaccine. Whether such incentives will be enough to change behaviour will be for employers to judge.