With the national Covid-19 vaccination programme gathering pace, many employers will be contemplating whether they can require, or mandate, that employees are vaccinated against the disease.
Although employers have a legal duty to take reasonable care for the safety of their employees and to reduce any workplace risks, achieving a herd immunity at work place presents a major challenge.
With the national Covid-19 vaccination programme gathering pace, many employers will be contemplating whether they can require, or mandate, that employees are vaccinated against the disease.
Although employers have a legal duty to take reasonable care for the safety of their employees and to reduce any workplace risks, achieving a herd immunity at work place presents a major challenge.
But to meet health and safety duties under present circumstance, employers will need to strongly encourage employees to get vaccinated to protect themselves and others in the workplace. However, whether employers should take the further step of mandating vaccination, as a health and safety requirement, is less clear. It is unlikely that there is an express contractual right or power for an employer to compel employees to have a vaccination. Can they be fired if they refuse to get vaccinated? Should they lose their jobs if they won’t do their part to achieve herd immunity?
Questions like these will be asked with increasing frequency as more doses of Covid-19 vaccine become available in the weeks and months to come. And there are no easy answers.
The legal issues alone are complicated. An employer can establish a mandatory vaccination policy if the need for it is job-related or if remaining unvaccinated would pose a direct threat to other employees, customers or themselves, according to guidance released by the Ministry of Health.
In the absence of such an express statutory authority allowing employers to mandate a vaccination among employees, the starting point would be whether such requirement would constitute a reasonable management policy
In looking at whether an instruction is “reasonable” the courts will consider and balance the rights of an employee against the reasons for the policy by an employer. The most pertinent employee rights here will be their human rights and associated rights under Article 27 of the Constitution. This includes but not limited to the right not to be discriminated against on the basis of protected characteristics such disability, marital status or health status.
From the employer’s perspective, the reasons for giving a vaccination policy are likely to be to protect the health and safety of the employee, their colleagues and, in some cases, to protect other people who are vulnerable and with whom the employee interacts.
If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave. An employer can have a workplace policy that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace."
If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a "direct threat" due to a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation" of absence.
The employer must follow the same reasonable accommodation and interactive process procedures if an employee objects to taking the vaccine due to a sincerely held religious practice or belief. The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the employer "should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief.
Since health and safety of other employees is a priority, employers will need to evaluate the employee's job functions, whether there is an alternative job or roles that the employee who do not wish to take the jab may take in the interim. These may be job that would make vaccination less critical.
Rather than implementing mandates that could lead to such difficult decisions, employers may wish to focus on steps they can take to encourage and incentivise employees to get vaccinated.
For example, employers may want to develop vaccination education campaigns, make obtaining the vaccine as easy as possible for employees, cover any costs that might be associated with getting the vaccine and provide incentives to employees who get vaccinated.
