In the midst of the Covid pandemic, the prospect of legal action by employees against employers seemed fairly remote. The UK government had introduced regulations to protect vaccine providers and there were sighs of relief when the vaccines eventually emerged. However, fast forward a couple of years and there are now concerns about mandatory Covid vaccinations in the workplace and potential personal injury claims.
Are mandatory Covid vaccines legal?
When the government introduced regulations covering those working in care homes in England many thought this was a sign of things to come. While mandatory vaccinations for care home employees came into force in November 2021, they were revoked in March 2022 after a huge backlash. At the time this prompted uproar with many employees leaving the care sector. The main concerns revolved around:-
- Freedom of choice
- Human rights
- Potential adverse reactions to vaccines
Depending on your standpoint, it may be understandable why the UK government introduced mandatory Covid vaccinations for English care home workers. These are employees working with elderly and often immune-deficient individuals. While progress has certainly been made with vaccinations, this area of the population is still most at risk from Covid complications.
This move by the government, and subsequent reversal, effectively placed the subject of mandatory vaccinations in the hands of individual employers. On one hand, yes, there have been complications with some vaccinations and even deaths. On the other hand, employers have to look at the wider picture and the potential impact of a Covid outbreak on their overall workforce.
Injuries received as a consequence of Covid vaccinations
When looking at potential compensation claims from employees, there are two specific issues to consider:-
Voluntary vaccinations
If an employee decided to accept voluntary vaccinations and they experienced a reaction, this is covered by the UK government’s policy on vaccinations. In this scenario, the pharmaceutical groups are deemed to have undertaken reasonable care and due diligence against a time-critical backdrop. At this point in time, they can’t be sued in a court of law. Might this change?
Mandatory vaccinations
Mandatory vaccinations for employees will potentially open up a can of worms. Not only could it potentially damage employer/employee relations but in the event of injury, caused by the vaccine, a personal injury claim may be forthcoming. There are also issues regarding indirect discrimination and unfair dismissal. A cauldron of uncertainty!
Blanket coverage may be the key
If an employer was to remove a particular element of the workforce from any mandatory vaccination programme, this could cause serious issues. For example, if pregnant women were removed as a consequence of safety concerns, and contracted Covid in the workplace, this could be problematic. It may leave the employer open to personal injury claims because of indirect discrimination.
Consequently, there is a feeling that a blanket mandatory programme (should an employer wish to go down this route) would be the best course of action. This type of programme would cover every employee but include a clause whereby an individual’s particular circumstances can be taken into consideration. This may see them removed from the mandatory programme due to health concerns. A decision of this nature would be made in conjunction with the employee, thereby potentially negating the issue of human rights and legal action.
How can employers protect themselves?
At this moment in time, there are significant concerns regarding Covid in the workplace, mandatory vaccinations and potential personal injury compensation claims. Consequently, it is important that employers do as much as possible to mitigate infection risks in the short term while deciding on their long-term policy. This will include:-
- Regular risk assessments
Risk assessments involving the workplace and employees would help to mitigate any potential issues further down the line. Identifying those who may be at risk and collecting evidence supporting a blanket mandatory vaccination programme would be useful.
- Alternatives to vaccination
While for many people, a Covid vaccine makes perfect sense, others may not share this confidence. In some business scenarios, it may be possible to make use of regular lateral flow tests instead, as a means of monitoring and controlling any outbreaks. The problem here, as soon as someone tests positive it may be too late to stop an outbreak amongst employees.
- New procedures
UK government websites are awash with ideas about new procedures in the workplace as a means of mitigating the risk of catching Covid. It is important that employers are seen to do as much as possible to protect employees. Introducing new Covid related policies into the employee handbook would be useful and also show a proactive approach to the problem.
- Monitoring other vaccination programs
Over time, we should see confidence eventually begin to grow in the array of Covid vaccinations available today. While some will disagree, much of the confusion today is based upon a lack of knowledge by the wider general public. So, monitoring mandatory vaccination programs in other sectors and other countries could provide extremely useful feedback.
Keeping everything under review
The subject of Covid in the workplace is something of a headache for employers, fast-changing and extremely fluid. The truth is that until Covid related personal injury compensation claims make it into the courtroom, we have no definitive decisions or direction. At this moment in time, there are serious concerns about human rights and potential personal injury claims in the event of mandatory vaccination programmes. However, do employer obligations extend into areas of mandatory vaccinations in order to protect individuals and the overall workforce?
