Can employers ban unvaccinated staff from the office?
First Published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), October 2021
In the last few months, as the island has experienced the pandemic’s latest wave, many employees have reverted to working from home. As the wave recedes, employers will no doubt be debating whether it is appropriate to encourage employees back into the office, and how this can be done safely.
One step that employers may be considering to promote staff safety is to allow only fully-vaccinated staff into the office. Adopting such a policy will involve a number of legal risks for the company, considered further below.
As a starting point, it is helpful to consider the extent of an employer’s duties under health and safety law. Under the Occupational Safety and Health Act 1982 (OSHA), an employer has duties to protect the health and safety of its employees and provide a safe working environment for its staff and other persons who may be affected by its business, such as suppliers while they are on site.
In the context of the ongoing pandemic, the primary means by which a company can meet its OSHA obligations will be to implement the Government’s latest guidance. Currently, this guidance continues to advise wide-ranging workplace protocols to protect employees, but crucially does not recommend mandatory vaccination.
Taking into account also that it is not yet clear how long vaccination protection will last for, or whether current vaccines will work against new variants, it is clear that vaccination is not a substitute for an employer having in place wider measures to ensure a covid-safe working environment. This is important context for the potential legal risks discussed below.
Under the Human Rights Act 1981 (HRA), employees are protected from discrimination on the grounds of various protected characteristics, including disability and “religion or beliefs or political opinions”. Some employees may be unable to get the vaccination for health reasons which could amount to a disability if sufficiently serious. Further, although it does not appear that opposition to the use of vaccinations is a core tenet of any mainstream religion, a cogent objection to mandatory vaccinations could potentially amount to a belief or political opinion which is protected by law. This issue, however, is yet to be explored in any detail before the courts and much will depend on an individual’s particular circumstances.
While in practice there are likely to be very few people who are unable or unwilling to be vaccinated due to a genuine protected characteristic, a policy of requiring vaccination as a condition of office access would place any such people at a disadvantage. That disadvantage would amount to unlawful indirect discrimination under section 2(b) of the HRA, unless the employer can show that its policy is “justifiable”.
When considering the issue of justification, one factor a court will take into account is whether the aim which the policy is intended to achieve could have been delivered by taking another, less discriminatory, approach. Here, it seems clear that the aim of providing a covid-safe working environment can be achieved without requiring vaccination as a condition of office access, for the reasons discussed above. Employers could also consider utilising the Government’s ‘SafeKey’ programme as an alternative.
Further, it is notable that the Government has issued guidance to assist companies in encouraging their staff to get vaccinated which states that employers cannot mandate that employees be vaccinated. The Ministry of Labour has also issued a statement that dismissing workers who refuse to be vaccinated would be unlawful, and the Human Rights Commission has warned against subjecting unvaccinated employees to discrimination. While these statements are not legally binding, they may be influential on a court or tribunal faced with legal claims in this area.
There may be some extreme cases where the nature of the employer’s business and the particular circumstances of the workplace mean that a vaccine requirement is easier to justify, for example for front-line healthcare professionals working in a care home, but such arguments are unlikely to be available to most employers.
Aside from those extreme cases, it is doubtful that an employer could mount a strong case that a mandatory vaccination policy would be justified and, as such, there is a material risk that a claim for indirect discrimination could succeed.
Aside from the discrimination risk, requiring an employee to be vaccinated as a condition of office access could amount to conduct which is so unreasonable as to entitle the employee to resign and claim constructive dismissal under section 29 of the Employment Act 2000. Again, one factor that a Tribunal would likely take into account when determining such a claim is the extent to which the employer can show that its policy was justified in the circumstances.
Finally, if an employer is to require staff to disclose their vaccination status, they will need to give thought to the associated data protection issues.
Aside from the legal risks, there are also practical issues to consider. An aggressive or inflexible approach to vaccine policy could well give rise to employee relations issues. Further, depending on the company’s headcount, a requirement to be vaccinated to enter the office could inadvertently result in the disclosure of the identity of those who are unwilling or unable to get vaccinated, which could result in tensions between staff as well as privacy issues.
