May 7, 2021
NO COUNTRY HAS made covid-19 inoculation mandatory for its citizens. But some industries have embraced the idea for their staff and even customers.
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In January Saga Cruises, a British cruise-line company, said that it would welcome only guests who were fully vaccinated. Hornblower Group, an American operator, implemented a similar policy, adding that crew and staff on land would also have to be inoculated. Some health-care companies have done the same. Houston Methodist Hospital, in Texas, has told its 26,000 employees to get fully vaccinated by June 7th or lose their jobs. And care-home operators in Britain have set similar deadlines. But the rules around whether employers can oblige staff to be inoculated are unclear and contested. Is it legal for employers in the West to demand that employees are vaccinated?
In America, guidance issued by the Equal Employment Opportunity Commission, a federal agency, suggests that, because of the danger posed by covid-19, unvaccinated employees pose a “direct threat” to the health and safety of others in the workplace. Thus, employers have the right to require vaccinations. There are some caveats, though. People with certain medical conditions, those with religious objections and, in some states, pregnant women are exempt. And lawmakers (most of them Republican) in dozens of states have put forward bills to stop employers making inoculation obligatory, although few are likely to become law. Compulsory vaccination is already being tested in the courts. In February a worker at the Doña Ana County Detention Centre in Las Cruces, New Mexico, filed a lawsuit against the county after being told that, to keep his job, he must get the vaccine. Part of his claim centres on the fact that covid-19 vaccines have so far been authorised only for emergency use, rather than gaining full regulatory approval.
Elsewhere the situation is less clear. British employers cannot force their employees to be vaccinated or dismiss them if they refuse. However, they do have a duty of care to their staff and must ensure that the workplace is safe. It may be reasonable in some circumstances for an employer to request proof of vaccination if it is deemed essential for an employee to perform their job, for example if they need to travel abroad or administer health care. (This already applies to some health workers whose employers require them to have the Hepatitis B vaccine.) It may also be within the employer’s rights to take disciplinary action if they fail to comply. So far there have been no legal cases in Britain putting that to the test. If such a case were to arise the judge would have to weigh the rights of the person against the instructions of the employer.
Other European countries are struggling with similar conflicts. The Parliamentary Assembly of the Council of Europe, a body of legislators which is supposed to act as a guardian of the continent’s democratic freedoms (although it has little real power), passed a non-binding motion in January that member states should “ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated.” But on March 31st the Italian government approved emergency legislation making vaccination obligatory for health-care workers, including pharmacy staff. Those who refuse may be reassigned to other jobs, demoted or even suspended with no salary for up to a year.
But even where it is legal to require vaccination, critics worry that mandates risk undermining trust between workers and employers, and that exemptions will prompt claims of unfairness from staff members not granted them or potentially put at risk. So carrots will matter as well as sticks. Whether offering training to make staff aware of the benefits of inoculation, or giving employees paid time off to get a shot, wise employers will try to nudge people towards vaccination rather than simply shove them.