Can an employer require employees to have a coronavirus (COVID-19) vaccination?

Employers have a duty to ensure, as far as reasonably practicable, the health and safety at work of their employees. Asking employees to agree to a vaccination against coronavirus (COVID-19) is likely to be a reasonable step to take to reduce the risk to employees' health. Vaccinations are not available for employers to buy privately to provide for their employees, but employers can encourage employees to take up the vaccine when they are eligible under the national programme.

However, if employees do not agree to a vaccine, employers are limited in what they can do, beyond encouraging take up. An employer could consider informing employees that refusing a vaccination could lead to disciplinary action. There is a risk that such a policy could cause employee relations problems, as employees may feel strongly that this should be a personal decision. It would also raise a number of legal issues, with a particular risk of complaints relating to discrimination on grounds of religion or belief, disability and age; constructive dismissal; and human rights issues. Employers should be aware that employees may have a medical reason for not getting the vaccination.

It is currently unlikely that most employers would be able to use health and safety grounds to justify taking disciplinary action against an employee for refusing a vaccine. This may change over time, when more is known about the effects of the vaccination programme, but there is still likely to be a very high threshold to meet to justify such a policy. It may be possible in high-risk circumstances, where alternative measures have been taken into consideration and where the policy accounts for the particular circumstances of individual employees.

The Government is making it a requirement for health and social care staff in England who have direct, face-to-face contact with patients/service users to have had two doses of the vaccine (unless they have a medical exemption). This requirement is expected to apply from 1 April 2022. The requirement is already in force, from 11 November 2021, for anyone working indoors in a care home. Where being vaccinated is a legal requirement for carrying out the work, the employer will be in a strong position to be able to justify taking action against an employee who refuses vaccination.