Incentivising staff as a way to enhance performance is nothing new. In particular, sales environments use these added benefits to keep teams target focussed and results driven. The chance to take home a TV, enjoy a meal out or in some cases, a weekend away are commonplace in sales offices where competition is encouraged, and colleagues battle to be “top biller”.
These perks are gratefully accepted, but how would you feel if these added extras were attached to a more intrusive condition?
Some employers in the US have begun to offer incentives to staff to try to ensure that teams take up the COVID-19 vaccine when offered. The LA Fire Department, for example, has dangled Google Nest entertainment systems and free Lyft rides to encourage firefighters to have the jab.
The COVID vaccine has created two distinct camps; those who would leap at the chance of receiving the vaccine, and ‘anti-vaccers’ who are adamant that they won’t be accepting a vaccine if offered. Perhaps surprisingly, even amongst some front-line Health care workers who have seen the devastation that COVID 19 can cause first-hand, there is some reluctance to be vaccinated against the virus.
Vaccine hesitancy is not new; however this level of hesitation causes a host of employment dilemmas when it comes to governments across the world working toward bringing this virus under control.
“No Jab, No Job”.
Last week, the founder of London’s Pimlico Plumbers made headlines for becoming one of the first bosses to say he was planning a “no jab, no job” policy for staff.
He stated that any new hires would have to be vaccinated to secure employment, but if existing workers had solid reasons for declining, they would remain in work as long as they agreed to regular testing.
He went on to say that once the vaccine becomes widely available this policy would become the norm and not just in his organisation. He believes that other employers will follow suit and that they would add this contentious clause to their terms and conditions of employment.
Employment lawyers disagree.
Legal minds disagree. It is thought that placing a condition on employment such as this poses significant “what ifs”. What if an employer asks employees to be vaccinated and some refuse? What if these unvaccinated employees were then forced to swap roles; from the shop floor to back of house, for example. What if employees could get fired if they refuse a vaccination?
The last year has been described as an “unprecedented time”, and here too we stumble into un-chartered waters. Libby Payne, a senior associate in the employment team at the Withers law firm in London confirms that, “We’ve never had to consider these sorts of things in modern legal history”.
Of course there are some industries where a vaccination is more of a consideration than others. Payne also confirms that some of the firms’ healthcare clients have already started to enquire what the law does and doesn’t permit.
In response, she has advised that bosses do not make any snap decisions on this “surprisingly complex and difficult” issue.
The legal position.
Here in the UK the law is unclear. In fact, perhaps the only thing we can say with any clarity at all is that the issue is shrouded in uncertainty!
The hurdles faced by firms who wish to exclude unvaccinated staff from the office are steep. In the main, it includes the question of how different groups of workers will be treated. For example, the UK government are currently advising pregnant women not to receive the vaccine; it is untested for this group. The same applies to staff with allergies or other health conditions that make vaccinations risky or impossible. And what about those with severe anxiety about the vaccine? How do you respond to those who sincerely believe a vaccination could be harmful?
Imagine too, the worst case scenario. What if an employer were to force, “encourage” or make vaccination a condition of employment only for a team member to have an adverse reaction? Liability issues aside, there may be severe health consequences for the individual in question.
Another tricky question arises should an employer decide to redeploy staff based on their vaccination status. Having vaccinated staff on the shop floor may serve to reassure customers and make good business sense but may disadvantage those employees who had spent years working toward a different and perhaps better paying, administrative role.
Even in regions where authorities have responded more definitely, the situation remains cloudy. In the United States, the Equal Employment Opportunity Commission issued guidance stating that employers can legally require most workers to be vaccinated. It did say however that those with sincerely held religious beliefs or health issues, such as allergies, were excluded from these conditions.
Despite this, many US employers are still hesitant to make vaccinations compulsory.
The great debate.
We would agree with the fact that this is a highly complex issue; one that demands more consideration than simply what the legal standpoint is. There are of course, other significant questions to be answered. It is not sufficient to think in purely legal or ‘black and white’ terms about these issues. This is a technicolour issue and one that seems to raise more questions than gives answers.
There is an argument for both sides of this coin.
We live in a democracy, where personal choice is paramount. The decision to receive a vaccination or any personal medical intervention has to be one that is arrived at freely, and without those in power – bosses or legislators – ‘forcing’ the hand of its employees or citizens.
The concept of private employers mandating any form of vaccine is concerning. It goes against principles of autonomous decision making, fairness, and of course veers toward excessive employer involvement in employees’ private lives. Rightly so, these are concepts closely protected in many countries and often enshrined into their local employment laws and cultures.
For example, The European Convention on Human Rights’s Article 8 (The Right to Respect for Private and Family Life) provides the right to physical and psychological integrity. A mandatory vaccination request made by an employer to its workforce would directly contradict this. Akin to this are countries such as China and Indonesia. These places also recognise an individual’s personal right to decide their own health matters.
It could also be argued that this is a dangerous precedent to set in law. This time last year, we had no idea where 2020 would take us. Could there be another COVID-19 type situation a year from now, or two or three? We have no idea. To allow employers to make vaccinations a condition of employment or promotion or reassignment may open up the flood gates. You could ask the question; where could this end??
Additionally, is it right to treat private and public sector workers differently? For example, are those “government employed” public sector workers more at risk of catching or transmitting a virus than their private sector counterparts? And then we need to look to different professions. Teachers for example. Can we require a teacher in a state setting to have a vaccine, but their private school peers remain exempt? And can you demand different standards from new vs. established employees?
The questions are never ending.
On the other hand, do business owners have a responsibility to protect their customers, and ensure that staff are free from the virus? Do care givers have a responsibility to protect those they look after? Or are we to see disclosure statements that make this a personal choice about who we, as individuals, come into contact with? For example, given sufficient information do we choose whether we shop in a store where staff have been vaccinated versus one where they haven’t? Or is this a choice about who we choose to work for? Do we only apply to those employers who most align with our own standpoint?
What does this mean for the 2021 workforce?
The World Health Organisation has made it very clear that the roll out of the vaccine does not spell the end of social distancing and other protection measures. Employers and employees alike have to assume that it will be a significant period of time before the bulk of company workforces have been offered the vaccine. It will be nearing the middle of 2021 certainly, with some predicting this may even extend into 2022. Consequently, employers need to continue to adopt other practices for good health and safety management.
As we have seen, it is unlikely to be practical, reasonable or legally mandated to make the re-opening of all general work premises conditional on vaccination. It is more probable that the employer must ensure that it has taken all of the other necessary health and safety measures recommended. For example, this will include the use of face coverings in the workplace, temperature checking, use of QR codes and tracing apps, sanitisation, remote or home working and split shifts.
Another factor to be accounted for is work travel. At the current time, there is no regulation on employees travelling without a COVID-19 vaccination certificate (subject to local quarantine and travel restrictions, of course). This may be subject to change as vaccines become more widely available and as countries and airlines introduce the proposed electronic health passports scheme.
For both employer and employee, it is very unlikely that there will be a one-size fits all approach. We can expect there to be rapid changes in 2021 as public opinion sways and more scientific data emerges that may present a more compelling case one way or another.
Despite the fact there is no clear conclusion, this will not be a topic on which an individual has no opinion or organisation has no policy. The Covid-19 vaccination has been heralded as the medical advance we have all been looking to to bring this catastrophic virus under control. While this is the case, it would appear that the legal and ethical issues surrounding the vaccine and employment law are as complex as the disease itself.