Ethical dilemma: Can employers insist on Covid-19 vaccinations?

As the Pfizer/BioNTech Covid-19 vaccine receives approval from the UK medicines regulator, to what degree can employers insist that staff are vaccinated before returning to the workplace? Ashleigh Webber examines the ethical arguments.

The news that three effective Covid-19 vaccinations have been developed – and one approved in the UK – has come as a relief to business leaders and HR teams. Finally, there is a glimmer of hope that normal operations could soon resume and employers will be able to safely bring more staff back into workplaces.

Many organisations will be keen to encourage employees to get a vaccine if it is offered to them, although the government has been clear that vaccination will not be a legal requirement when it becomes widely available.

But, while having a high proportion of vaccinated staff would be advantageous for employers, it is also clear that not every worker will want to be vaccinated.

Not only will some employees place themselves within the ‘anti-vaxxer’ community, there are a raft of reasons why staff might not want one – from religion and philosophical belief, to simply wanting to wait until any side effects are more widely understood.

Thus, a dilemma emerges: is it ethical for employers to request that staff are vaccinated before they return to the office?

“Behaving ethically generally involves difficult choices; dealing with dilemmas. Employers need to weigh up the need to keep all employees, customers and the wider community safe – in line with their general duty of care – with the need to respect the wishes and liberties of individuals,” says Dr Ian Peters, director of the Institute of Business Ethics.

“Whatever the employer’s decision, they need to think about how they will justify it and the impact it will have on all concerned. And, of course, whether there are legal considerations to be taken into account. Ultimately, ethics are seldom as simple as right and wrong and such decisions always require careful consideration.”

‘Not the same as being asked to wear a mask’

From an employment law perspective, Constantine Law’s Sarah Evans says it is unlikely to be considered unethical for employers to expect staff to take part in a national vaccination programme, “but it might be pushing it somewhat to require staff to have the vaccine before returning to an office, such that for example, an employee faces disciplinary sanctions if they do not get the vaccine.”

“Some views about vaccines complicate this a little, as does the fact that the vaccine is delivered by an injection – for many, this is not quite the same as being asked to wear a mask or stay six feet away from somebody,” says Evans.

She says it is unlikely that any employment tribunal would “have sympathy for any expressed belief in the assertions underpinning the anti-vax movement”, but employers should be wary of imposing vaccinations on staff who have a genuine needle phobia or a health condition that prevents them from being vaccinated.

Some employees may have religious reasons for objecting to receiving a vaccine, says Kathleen Heycock, a partner at Farrer & Co.

“Any employer who requires employees to receive a vaccine could be open to discrimination claims on religious grounds, given gelatine derived from pigs is often used in mass produced vaccines, and some religions disagree with any medical intervention – although it is unclear whether that is the case for the Covid-19 vaccines,” she said. This might also be a concern for vegan or vegetarian employees.

Duty to educate staff

Leo Martin, founder and director of ethical business advisors GoodCorporation, says employers have a responsibility to protect the health and wellbeing of their staff and ensure they are informed about the pros and cons of vaccinations.

He says: “The vaccine will only successfully stop the spread of the virus with the widest possible take-up, so there is an ethical duty on employers to ensure that accurate information about the vaccine and its benefits are clearly communicated to encourage maximum participation. It may also be advisable to counter any disinformation about the vaccine as this can promote misplaced fear and impede the vaccine’s success.”

Martin advises employers to develop a policy in agreement with their employees, but await further guidance from the government before firming-up their plans. Due to the nature of some roles, vaccination may be necessary, albeit not required under national law.

“For some employees, it is likely the that the vaccination will be a de facto legal requirement as vaccination certificates are likely to be required by many countries to allow business (and other travellers) to enter,” he says.

Core values

Peters says there are two things employers must consider when deciding what would be ethical to include in their vaccination policies.

“First, what do their core values tell them about what they should do? If they have invested time in agreeing their core values with their team members then this should help them in deciding what course of action to take,” he says.

“Second, what are the circumstances? A worker in a care home may be a greater risk if they are unvaccinated than a worker in a general office. Some circumstances may justify making vaccination a requirement but generally information and education is better than compulsion.”

Careful consideration must also be given to the impact such policies have on culture and employees’ rights, says Claire Williams, director of people and services at CIPHR.

“There is a potential myriad of things to consider: consultation, discrimination, human rights…and what if employees refuse? You could then be faced with unfair dismissal claims,” she says.

Doing the right thing

Finally, Martin says there is also an argument in favour of “doing the right thing” for employees’ health and wellbeing – and this includes continuing to follow government guidance around handwashing, social distancing, the use of face masks and remote working.

“These rules are likely to be very important as we move into a world where all employers will face a mixed employee population, those vaccinated and those not yet vaccinated,” he says. “This will be a stressful time for many, so it will also be important to monitor the mental health and wellbeing of staff and provide support where needed.”

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At this stage it is clear there is no right answer to the ethical question around vaccinations. Employers will need to carefully weigh up the pros and cons and listen to employees’ views over the coming months.

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