Advice

Covid-19 vaccine: what businesses should consider

18 Nov 2020 By Jonathan Owen

With major breakthroughs in the search for a jab, People Management asked the experts when (and if) employers can expect to return to normal, and the legalities of mandating that workers get immunised

Recent breakthroughs with a number of Covid-19 vaccines in development around the world mean it is now a case of when, rather than if, the population will be able to be vaccinated against the virus.

While all the vaccines in question are still awaiting regulatory approval, the NHS has already drawn up plans to start administering them before the end of the year. “While we don’t yet have a vaccine, we can now have hope,” health secretary Matt Hancock said this week following the news that one of the vaccines in development reported 90 per cent effectiveness in clinical trials.

With many people desperate to return to some sense of normality, and employers still in the dark as to when staff will be able to cease following social distancing protocols and return properly to workplaces, they are faced with a nervous wait for further good news.

But with these vaccines being produced in significantly less time than other inoculations, and misinformation rife about their effectiveness and potential side effects, organisations also face the potential hurdle of some employees putting off accepting the vaccine, or not taking it at all.

Indeed, a survey of 1,000 Brits conducted by Kantar this month found that while 75 per cent of people said they would be likely to get vaccinated, 11 per cent said they would ‘probably not’ and a further 8 per cent stated ‘definitely not’, pointing to legal and ethical dilemmas employers could be faced with if staff refuse to submit to a vaccination programme.

So when a Covid vaccination does eventually get cleared for use, can businesses mandate that their workers have the jab, and what’s their legal position if employees refuse? People Management asked employment lawyers and HR experts for their answers to this, and other related issues.

Which vaccines are in development and when will they be ready?

There are at least 50 vaccines in development globally, according to the Regulatory Affairs Professionals Society.

The UK government has secured early access to 355 million doses of seven of these vaccines, including a number of the most promising candidates. It has 100 million doses of the University of Oxford/AstraZeneca vaccine, 40 million doses of the BioNTech/Pfizer vaccine, 60 million doses of the Novavax vaccine, and five million doses of the Moderna vaccine – all of which are undergoing phase 3 clinical trials.

GPs have been told in a letter from NHS England and NHS Improvement that the health service is planning to be ready to roll out a mass vaccination programme any time from December – although a launch some time in the new year is more likely. The AstraZeneca and Pfizer vaccines are most likely to be the first available, it added, with the caveat that “it is only when a vaccine is deployed that we will be able to know how effective the vaccine is at stopping transmission”.

Paul Kelly, head of employment at Blacks Solicitors, said data from Pfizer suggests its vaccine could prevent more than 90 per cent of people from contracting Covid-19 (including 94 per cent of over-65s), whereas Moderna suggests that its vaccine success rate could be as high as 94.5 per cent. “We assume that key workers, the elderly and those in high-risk categories will receive the vaccine first,” he says.

However, employers should remain cautious, according to Tom Neil, senior adviser at Acas. “The vaccines are still in their development or testing stages so the exact timescales around their implementation have not been ironed out yet. It would be wise for employers to await further guidance from the government in this area before making any firm plans.”

Will a vaccine allow a return to normal working conditions?

Andrew Willis, head of legal at Croner, says it remains to be seen how quickly any of these vaccines will allow restrictions to be lifted. “Employers will need to keep up to date with all guidance coming from the government,” he says. “It should be remembered that it is likely to take some time to vaccinate the entirety of the UK, meaning that we may need to live under certain levels of restriction for some time.”

Should a vaccine be successful, it could result in social distancing and other measures being relaxed or abolished, according to Kelly. “However, given the way in which we have had to adapt to living with Covid-19 this year, it is likely that working conditions may never fully return to how they were before the pandemic,” he adds.

“Many employers have discovered the benefits of remote working that previously they may have thought impossible – this has resulted in a cultural shift that is likely to continue into the future.”

Employers and employees should not expect to see a return to “anything close to normality until next autumn at the earliest”, warns Emma Parry, professor of HR management and head of the Changing World of Work Group at Cranfield School of Management. “We also don’t know to what extent any vaccine will provide long-lasting protection against Covid-19, so there is a risk that any return to normality might be short-lived.”

And Rachel Suff, senior policy adviser for employment relations at the CIPD, adds that employers seeking to bring workers back to the workplace even after a vaccine should still consider its three tests. “Is it essential (for wellbeing or productivity), is it safe and is it mutually agreed?” she says.

Can employers legally oblige employees to get vaccinated?

David Greenhalgh, senior employment lawyer at Excello Law, says it seems unlikely the government will make vaccination mandatory because of the civil liberties and human rights challenges such a position would create. It is more likely that they will push employers to encourage their staff to get vaccinated, he says, in the same way that it used employers to encourage a return to the workplace earlier in the year.

“If the government did make vaccinations mandatory, employers may well then follow and make having such vaccinations a condition of employment,” Greenhalgh says. “You can easily imagine that certain sectors like hospitality or retail will be keen to advertise that all their staff have been Covid-19 vaccinated.”

However, he warns that imposing such a blanket requirement could bring a risk of discrimination claims – particularly on grounds of disability or religion. “The other risk for an employer of requiring staff to be vaccinated where vaccines are relatively untested… is that if side effects later appear the employer could be targeted in class actions by employees who were forced into having first-generation vaccinations.”

It is possible that some businesses might include clauses related to vaccination in employment contracts in the future. But, says Parry: “I would expect employers to stop at strongly recommending their workforce be vaccinated.”

Any future approach to coronavirus vaccinations is likely to be based on the existing rules relating to flu jabs, says Kathleen Heycock, partner at Farrer & Co. “Currently an employer is not allowed to insist that an employee has a flu vaccination, even if they offer to pay for it.” She adds that dismissing an employee because they refuse to take a vaccine would be likely to open the door to unfair dismissal claims – unless there is a valid reason for requiring a vaccine; for example, in care work.

With the likelihood that the government will make having the vaccine a legal requirement slim, it may be difficult for employers to enforce vaccinations among their employees, says Willis. “The best course of action for employers would be to encourage staff to take it through awareness campaigns, focusing on the benefits of doing so.”

Can employers buy vaccines to administer to their workforce?

Emma O'Leary, HR director for ELAS Group, says it will likely be some time before any of the vaccines can be bought privately. “The priority will be for the government to purchase all they can,” she says.

This is echoed by Heycock. “The urgency of the distribution means that governments are going to be priority purchasers – the big pharma companies are unlikely to be putting the vaccine straight on the shelves, or indeed selling to private buyers, at least initially,” she says.

Dr Karen Michell, researcher at the Institution of Occupational Safety and Health, goes further, saying employers should not be allowed to buy vaccines just yet. “This could lead to a situation where the wealthiest and large companies are able to enjoy this right of access at the expense of the SMEs – again creating discriminatory practices,” she warns.

Could the vaccine be offered as a work benefit in the same way as the flu vaccine?

Although it is yet to be confirmed if the vaccine will become available privately, this may change over time if vaccination proves successful and Covid-19 less of a threat, according to Willis. “Companies may be presented with an opportunity to seek private vaccinations, especially if vaccines need to be administered more than once,” he says.

O’Leary also says that “assuming we eventually get to a stage where they can be purchased privately in the same way as the flu vaccine, then yes certainly it can be offered as a work perk as part of an employer’s commitment to ensure the health and wellbeing of their employees”.

But companies could be waiting a long time to be in a position to do this, says Kelly. “Legally, there are no issues with employers offering the vaccine as a work benefit, but given the issues with supply and storage, it could be months if not years before such benefit schemes are practical.”

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