Approaches Employers Can Take to the Covid-19 Vaccine
As the UK’s voluntary vaccination programme continues apace, many questions are arising over employers’ obligations and the rights of employees. On the one hand, getting employees vaccinated against COVID-19 is a critical step toward returning to normal business operations in 2021. However, there are apparently 5 million people following anti-vax groups in the UK, as well as a large population who are either not eligible or unable to vaccinate on medical grounds. Business leaders and HR, who play a major role in setting vaccine strategy, must decide among a range of approaches to encourage, facilitate or mandate vaccination. Nearly all organisations are taking some kind of action with regard to the vaccine as part of their plans for business recovery and the return of remote workers to the office. What will yours be?
While the vaccines offer robust protection against serious illness, it is still unclear to what degree they prevent transmission of SARS-CoV-2, the virus that causes COVID-19. This is why most organisations plan to keep workplace safety measures in place once vaccines are rolled out and more employees return to the office. Accordingly, business leaders would like to see as many of their employees as possible get the vaccine as soon as they are eligible. The question for MDs and HR teams is how hard to push for this outcome. Most organisations are not requiring employees to get vaccinated but rather, are encouraging them to do so when they can and taking steps to help them get vaccinated (see Figure 1). In my opinion this is the best path to tread – I simply don’t believe forcing anyone to have the vaccination is a reasonable instruction.
This article summarises some of the potential questions posed by enforcing, incentivising or encouraging vaccination and any risks that doing so could entail.
Mandate It
Since January, several employers such as the now infamous Pimlico Plumbers have made headlines for planning to contractually require employees to get a COVID-19 vaccine before returning to work in person. However, the organisations pursuing this strategy are still few and far between. Only 5% of organisations Gartner surveyed said they would require the vaccine (see Figure 1:)
Many business leaders have qualms about the ethics of requiring employees to get a vaccine, fear that employee sensitivity to vaccine policies could negatively impact trust and engagement, and that they could also lead to possible legal liabilities.
But beyond the ethical argument, the issue is really whether you can contractually require it, and if a person refuses, take any number of steps from freezing pay, sending them home or even dismissing them.
What much of this will ultimately boil down to is whether the request/requirement is a reasonable instruction and the main objections to it being so, as well as the counter-arguments. For example:
Staff claiming it is discriminatory to force them to have the jab – establishing anti-vax as a genuinely held philosophical belief worthy of respect in a democratic society will be very difficult: the person would likely have to demonstrate they don’t have any other vaccine either. Further, if refused on religious grounds, the mainstream groups of the world’s major religions have accepted that vaccination is permissible (even in some cases where the gelatine used in the vaccine contains pork or beef products).
A staff member won’t permit you to hold and possess their medical data. Mandating the vaccine also entails asking employees for proof of vaccination, which carries the same legal and ethical implications as any other situation in which you collect employee health data. A staff member does have a legal right to refuse access to medical records.
When we were coming to work, you said social distancing etc was enough: surely it’s enough now too? – this is also a little harder for an employer to refute. The main point is that the virus variant now predominantly in circulation appears to be more easily spread now than before, hence the tougher phase 3 lockdown. If a vaccine is available, that should also minimise risk even further especially in conjunction with social-distancing measures that will still be in place. This is, the employer would say, effectively an extension of the social distancing measures, albeit a more intrusive one.
You don’t have approval under Collective bargaining agreements (if you have them). If you work under collective bargaining agreements and want to make a contractual change to mandate vaccination when offered to an individual, it will likely lead to must kick-back from unions. You must work with your organisation’s legal team on any vaccine policy, whether or not the organisation decides to make it mandatory.
You aren’t being consistent – the vaccine will of course not be available to everyone at the same time. So, as an employer, are you going to let the very elderly who have been vaccinated back into work first? That could be tricky. Are you going to wait for everyone to be vaccinated? Fine, but it will be a long wait. If you aren’t, then there may well be a chance of the vaccinated and the unvaccinated sharing a workspace anyway and requiring a vaccination becomes less palatable.
I am too scared about potential side-effects – again, not an easy one to deal with. Pregnant women are only being offered the vaccine in exceptional cases as there is simply no research on the effects that it may have on them. The vaccine has been developed amazingly quickly and there are no long-term studies of its effects on the non-pregnant so, even if it is unlikely to have an effect, no-one can say for sure. Also people who suffer long covid syndrome or other conditions, may be reluctant to have a vaccine potentially trigger another surge of crippling symptoms which impacts not only work but also wellbeing.
Based on the above, my advise to employers would be to err against mandating vaccination as a business policy.
Incentivise it
Major retail companies, including Aldi, Dollar General, Instacart and Trader Joe’s, have garnered attention for offering their employees financial incentives to get the COVID-19 vaccine. These initiatives are less provocative than mandates but still involve some risks and complications. For example, employees would need to provide proof of vaccination to collect the incentive, which again means soliciting health information. Employees who are unable due to age or unwilling (due to underlying health concerns) to be vaccinated may view such incentives as discriminating against them.
There no prohibition on strongly urging people (or incentivising) them to have the vaccine, but risk averse employers may not want to do so for fear of the risk that the vaccine may have as yet unknown consequences for the recipient, which could lead to personal injury claims in years to come.
Encourage It
The vast majority of organisations tell HR Optimisation they are encouraging their employees to get the vaccine without making it mandatory.
Communication and education are key components of this strategy. Most of the businesses we work with are focusing heavily on making sure their employees have accurate and timely information about the vaccine, so they can make an informed decision for themselves. This includes information about the science, safety and efficacy of the vaccines from authoritative sources such as the European Centre for Disease Prevention and Control or the World Health Organization. It also includes letting employees know when, where and how they can get the vaccine in their local area. This information is very geographically specific and frequently changes, so employees must be updated regularly. A one-off communication is unlikely to suffice.
Employees may have concerns about the safety of the vaccine, which may make them hesitant to get it. To reach out to these employees and gently persuade them, businesses are taking steps such as:
- Having senior leaders talk about their own enthusiasm for the vaccine and sharing photos or videos of them getting it
- Sharing stories of employees who have gotten the vaccine about what it is like and why they chose to get it
- Bringing in medical experts to talk to employees about the science and field questions about safety
Encouraging employees to get the vaccine also means making it as easy as possible for them to do so. This means incorporating it into your paid leave policies and ensuring employees can take time off to get vaccinated. Many people have reported unpleasant (but in almost all cases, harmless) side effects from the first dose of the Oxfort Aztrazeneca and second dose of the Pfizer and Moderna vaccines that made them feel ill (often markedly) for about 24 -48 hours. Business leaders should also take this into consideration: proactively informing staff they can have paid time off to get the vaccine, and planning to offer additional paid time off for them to recover from side effects are just two prudent people first policies HR Optimisation would encourage you to promote.
Hannah Powell
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