Whether employers can require evidence of vaccination as a condition of employment or attendance in the workplace has been a hot topic in recent months, with many employers (having weighed up various legal obligations and risks) introducing a policy featuring vaccination status to some extent. Yet vaccination status is not stable and the dilemma now facing these employers in the UK is whether to revisit their policy requirements due to the rollout of booster jabs. Put simply, should employers with a vaccine policy now require vaccinated individuals to have the booster?
Full vaccination is currently seen as having completed the full course of an approved vaccine (i.e., being ‘double jabbed’, unless in receipt of an approved one-dose vaccine). At the moment there is no mention of the booster on the NHS Covid pass, receipt of the booster is not a pre-requisite for activities such as travel or attendance at venues, nor is it a requirement of deployment for care home staff (where there is a legal requirement for full vaccination, unless exempt, in England). On this basis, employers may be minded to maintain the same stance and ignore the boosters for any workplace policies too.
It will certainly be appealing to employers to maintain the status quo from a practical perspective. The administration of assessing whether staff eligible for a booster have had it is likely to be a particular challenge, both keeping track of who is eligible when (as although all UK adults have been offered the full course of an approved vaccine, the booster is only currently available to vulnerable groups and to those aged over 40, six months after their final jab), and what ‘evidence’ an individual has of a booster (as until this appears on the NHS Covid pass the individual will have little by way of proof that they have received it). Further, employers are likely to want to avoid having to update and communicate a change in policy so soon after introducing it, and dealing with any engagement issues or disputes arising from a change in approach.
That said, employers ought to keep their vaccination policy under constant review, and be prepared to adapt it to reflect the changing circumstances, including developments in the government’s policy around boosters, or where the existence and efficacy of boosters affect the business rationale for having the internal policy.
With government rhetoric that boosters are crucial for increasing immunity due to waning protection from initial vaccinations, it would seem illogical if government policy is not updated so that boosters become a feature of ‘full vaccination’ at some point. It will also be interesting to see whether the legislation making full vaccination a condition of deployment in care homes (and frontline health and social care from April 2022) is amended to include reference to boosters. However, although employers with vaccine policies should watch the political developments with interest, their approach should be proactive and not only driven by the government’s stance – to date employers have largely been left to make their own decisions over vaccination policies and this is not expected to change.
It is the lack of guidance around workplace vaccination policies which have made them a particularly hot topic in recent months. Employers have been left to grapple with the legal risks associated with policies of this nature, and those who opted to introduce them ultimately justify their approach on health and safety grounds, seeing vaccinations as a vital part of their management of Covid risk in the workplace. However, employers who do not now factor the booster rollout into their ongoing Covid risk assessments may find themselves at increased exposure to employment related claims – if the policy is not expanded to include boosters (where eligible), cautious employees may question the risk to health and safety, and less cautious employees may question the rationale for any policy at all. For more commentary on the legal issues, please see “The new workplace: how vaccines and testing impact employers in England and the United States” that features in our Global Perspectives – International trends in commercial disputes publication.