HRD talks to a lawyer about the legalities surrounding the COVID-19 vaccination
It’s hard to imagine an employer standing at the doorway to an office, holding a syringe and saying “you are not coming through unless you hold out your arm and get injected”.
Standover tactics involving bullying and intimidation will not be considered reasonable courses of action when it comes to encouraging employees to have the COVID-19 vaccine.
That’s according to James Warren, Partner at Dentons Kensington Swan, who also told HRD that there may be circumstances where HR can follow a fair process to introduce a policy for making COVID-19 vaccinations compulsory.
“If the workplace has a health and safety risk connected with infections, it could be required as a condition of continuing forward with employment that staff have the vaccine,” said Warren.
The classic example is a hospital or a situation where there is exposure to vulnerable people. In that circumstance, Warren said the employer would have to introduce a policy that required everybody to have the vaccine and there would need to be consultation with staff about that.
If an employee then refused to have the vaccine, the employer would have to look at their individual reasons as to why they said ‘no’.
“Somebody might have medical reasons which means that it is not possible or reasonable for them,” said Warren.
“Employers would have to consider all the circumstances around that before they could turn around and say ‘I think it is reasonable for you to take it’. Therefore, if you are not going to do so I’m going to discipline you or end your employment.”
Warren compared the situation to asking staff to wear a mask. Employees are not legally required to wear a mask, but some companies are strongly encouraging staff to wear them or moving to make masks mandatory.
Indeed, supermarket companies Countdown and Foodstuffs announced that they would be encouraging staff to wear masks but not make them compulsory.
Moreover, transport orgnisations such as Red Bus, Ritchies Coachlines and Go Bus said masks were available for staff that want to wear them.
Red Bus stated, "If there was any evidence of community transmission in Canterbury, or the region changed to level 3 or 4, we would move to make masks wearing mandatory as a practicable measure to enhance workplace and public safety."
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According to Warren, employers are within their right to say that their policy is to have everyone wearing a mask- even though it’s not government policy.
“When employers move into that sort of territory, they have to show there are good reasons for it,” he said.
“So there must be health and safety reasons for it and then you have to look at their individual circumstances before you can take action against an employee for refusing to wear a mask.”
For everyday workplaces in office environments, Warren suggested that the COVID-19 vaccination might be a bit like the flu vaccination in terms of the organisation's approach to employees.
“With the flu vaccination, your average employer will not say ‘if you don’t get it your employment will not be able to continue’,” said Warren.
“That might happen with professions such as nursing, but not in your everyday office.”
Warren also offered the example of someone who wants to work in India or South-East Asia, and the employer recommends to the employee to have certain vaccinations.
“If they say ‘no’ then I think you are within your rights as an employer to say ‘we are not going to consider you for the transfer – it’s not going to work because we need to be sure that we have done everything reasonable to reduce the risk to your health and safety’. Obviously, there is insurance attached to that as well if someone becomes unwell.”
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“However, you do get into interesting double standards when someone is transferring to work in that overseas office and none of the people in that office are required to have that type of vaccination. How can you justify it then?”
Warren said that the extent to which the question of compulsory vaccinations becomes a workplace issue will largely depend upon the takeup and resistance.
A Gallup poll in the United States looked at this very subject. Asked if they would get such a COVID-19 vaccine, 65% of Americans said they would, but 35% would not.
Furthermore, just 59% of parents of children under 18 said they would agree to be vaccinated, while 41% would not.
“The level of takeup will probably depend upon the evidence around the vaccination and its advocacy," he said.
For example, Warren said the takeup would be strong if the vaccine is found to be 100% effective, 100% safe and it doesn’t cost anything.
“So it’s hard to assess what the takeup will be until we know what the vaccination looks like, how effective it is, and what the situation in the world is.”
