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Legal and regulatory

No Jab, No Job? The employer’s conundrum

Why a company’s ability to compel its workers to be vaccinated has become the “million-dollar question.”


Business workplace with people, cup of coffee, digital tablet, smartphone, papers and various office objects on table
F69X0T Business workplace with people, cup of coffee, digital tablet, smartphone, papers and various office objects on table
Alamy Stock Photo

As governments continue to take steps toward curbing the COVID-19 pandemic, companies are thinking about when their staff can return to the workplace. Goldman Sachs, for example, has stated it hopes to have its 40,000 employees back in their offices by the summer. However, firms face a delicate balance in trying to return to normality without pushing their staff too hard to come back.

In the U.S., “companies can insist that employees return to the office full time, as long as they implement protocols to provide a safe workplace for their employees and comply with certain federal, state and local laws,” says Kelley Barnett, AmTrust Financial Services’ Vice President, Corporate Counsel – Labor & Employment.

In the UK, it currently isn’t up to companies to decide when their workers can return to the office. “The government guidance is very clear: if you can work from home then you must. That would trump a company’s request for its workers to return to their workplace,” says Merrill April, a Partner at employment lawyers CM Murray.

It’s unclear when the UK government will allow all workers to return. In late March, it is due to lift its stay-at-home order, but people must still “stay local.” Additionally, various countries within the UK are relaxing their lockdowns at different times.

Exceptions to the rule

Even when companies feel it is safe for workers to return then they would still have to make exceptions. In both the U.S. and the UK, workers with disabilities, including asthma, may be legally entitled to continue working from home or be reassigned to other work.

Mark Kaye, a Senior Associate at law firm BCLP, says it isn’t just about making sure workplaces are COVID-secure: “One of workers’ biggest fears is about their commute. They’re worried about using public transport, and their companies will need to be mindful of that.”

Kaye says that while advising companies on both sides of the Atlantic, he gets the sense that organizations are “quite cautious” about a return to work: “We’re likely to see companies adopt blended working – with employees splitting their work time between home and the office – for the foreseeable future.”

Legal precedents

The mass vaccination programmes being rolled out in the U.S., the UK and Europe will help allay many peoples’ fears about returning to the workplace. But some companies want to speed up that process: Pimlico Plumbers is the first UK firm to say it will require all its 400 workers to be vaccinated.

A company’s ability to compel its workers to have the jab is “the million-dollar question” says April. In the UK, “employers cannot make it compulsory for a member of staff to have a vaccine [under] the Public Health (Control of Disease) Act 1984,” says Paul Leach, People and Performance Lead at GreenKite Associates.

But some sectors can reasonably expect their staff to have injections, in order to protect their customers. “There have long been occupations that require certain vaccinations as a prerequisite to employment. Healthcare is an example of this,” says Mark Walls, Vice President, Communications & Strategy Analysis at Safety National, a specialty insurance and reinsurance provider and member of the Tokio Marine group.

There isn’t the same strong rationale in other sectors, however, particularly where they can continue to work effectively from home, says April.

Even if an employer did make vaccination mandatory it would still legally have to exempt some workers, such as people with certain disabilities. Also, women who are pregnant or hoping to get pregnant, along with breastfeeding mothers have been advised not to be vaccinated yet. People can also object on religious grounds, perhaps even including anti-vaxxers and vegans if their convictions meet their country’s legal definition of a religion.

Reputations at risk

With warnings that the world must learn to live with COVID-19, those companies eager to get their workers back in the office should beware, says Kaye. “Employers have generally been really good in engaging with their employees over the past 12 months, and they need to continue to do that, otherwise they face legal risks and reputational damage.”

It will be much harder for companies to deny employees’ requests to work flexibly, after months of being forced to work from home. “Lockdown has blown many of the old excuses out of the water,” says April.

She adds that some companies might use home-working as a carrot to persuade their workers to accept other contract changes, such as “layoff” clauses, where they can send employees home on reduced pay if work dries up in future lockdowns.

Employers will have to accept that some workers won’t give up working remotely without a fight. Far-sighted companies will use that to their advantage, says Kaye: “Flexible working is likely to be the new currency when it comes to recruiting and retaining the best people.”

The power of long memories

Companies will be remembered for how they treat their staff during the pandemic. Wetherspoon’s, the UK pub chain, drew intense criticism in March 2020 when its CEO told its 40,000 staff to find jobs at supermarkets instead.

Workers have had to juggle lots of demands during the pandemic, says Barnett. “Companies should consider the impact of their return-to-work policies on employee morale and be reasonably flexible if possible.”

There’s also any number of claims that workers could bring if they’re forced to come back to work too soon, including if they feel they’re being put in imminent danger by their employer, says Kaye.

Companies risk bad publicity, and worse, if their employees blow the whistle on unsafe practices. April’s law firm helped an employee of a large UK estate agency which told staff to return to the office during the latest lockdown. “We decided to use the company’s anonymous hotline to raise her concerns, which prompted the company to back down,” she says.

Thousands of workers at a UK government agency in Wales voted to strike after more than 500 virus cases at the site. Their union called it “shameful” that their concerns had been ignored.

Barnett adds that companies which “seize the moment” to consider their employees’ opinions and needs “will likely see positive reputational dividends for years to come.”

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