To mandate or not to mandate: Should companies be able to mandate vaccinations?

August 10, 2021

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3 min read

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What's going on here?

With COVID restrictions easing, and many people going back to the office, companies are pondering whether they can mandate vaccinations for their employees. 

What does this mean?

Airline Cathay Pacific is one such employer, which has told its crew that they must be vaccinated by 31 August or risk losing their jobs. For Cathay Pacific, the need for quarantine for unvaccinated individuals at most destinations had reportedly made staffing difficult. Other airlines, such as Delta and United are following a similar path, requiring their pilots and crew to be vaccinated. 

Airlines are not the only ones considering such action. The UK government has announced that care home workers will be required to have the vaccination. Private businesses are also following suit. For example publisher Bloomsbury will make vaccination compulsory for staff returning to the office.

In the US, the Equal Employment Opportunity Commission recently stated that the law did not prevent an employer from requiring employees to be vaccinated before they physically enter the workplace. However, reasonable accommodations must be provided by the employer where the employee could not be vaccinated for reasons such as medical circumstances. The commission also made clear that employers are also entitled to provide incentives to employees for getting the jab but such incentives must not be coercive. 

What's the big picture effect?

It is common for governments to mandate certain behaviour in order to protect the community, however, whether or not to mandate vaccination has brought forward a wealth of legal issues not least with regards to the balance between individual freedoms and community wellbeing. If vaccinated individuals are afforded more rights (for example the right to be in the office, or the right to enter certain venues or events), we risk creating social division as well as new grounds for discrimination based on vaccination status. France, faced with rising cases, recently announced that from 1 August un-vaccinated individuals would not be allowed inside restaurants, to theatres, or to travel unless they could show a recent negative test.  The result of this announcement was 2.2 million people signing up to get vaccinated within 48 hours. This seems to suggest that many people do not have a strong opposition to vaccination, but potentially only require some additional motivation to get the jab. 

In addition, it is not yet clear whether an employer, which has not mandated vaccination, would be liable under health and safety regulations for a serious covid outbreak at the company. If an employee suffers long-covid from the virus caught from the office environment, should the employer be liable for this? And if an employer is liable for this, then can the employer also be liable for an outbreak of the flu or norovirus?  

The converse is also true: whether an employer would be liable for side effects caused by a mandatory vaccination. If this were the case, what level of side effect would be required for compensation – common vaccine side effects such as a fever or arm pain would generally not be considered so adverse that they would require compensation, but what if the fever or pain meant that the employee had to take a day or two off work, would these days be paid by the employer?

It is highly likely that cases will be brought forward on some, if not all, of these grounds in the coming months and years. The pandemic has been unprecedented in modern times, so it is not surprising companies are grappling with what to do in the aftermath. The biggest question here is whether the freedom of choice over one’s own body is able to trump the right to be safe at work.

Report written by Julie Lawford

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