Since the development of Covid-19 vaccines, the calls encouraging vaccination have been loud and clear – but a signifi cant proportion of people are unwilling to comply. So, what role does the private sector have in pushing vaccine mandates? Jim Banks speaks to employment lawyer Holly Cudbill of Blake Morgan, and Emily Dickens, head of government affairs at the Society for Human Resource Management, about this controversial issue and the role businesses play in shaping the lives of their employees.
Scientists and politicians have been banging the drum for vaccination since the first Covid-19 vaccines were developed. But their calls for everyone to be involved in controlling a public health disaster have been undercut by a vocal anti-vax community, expressing their views in both mainstream and social media. Vaccination has become a controversial issue, despite the disruption to normal life that the pandemic has wrought.
Private individuals have the right to choose whether they get vaccinated, but when they work for a business that has a duty to protect the health and safety of its employees, should they be refused the right to work if they decide not to get a shot? That is the dilemma that employers and governments have been dealing with for two years. In the US, where the Biden administration decided that companies with more than 100 employees should make vaccination a condition of continued employment, there has been a running battle between state policy – to which the US Supreme Court ultimately objected – employers and their workers, all of which are trying to find a workable solution that protects public health but is balanced with personal freedoms. A similar debate has been ongoing in the UK and Europe. In October 2021, for instance, private equity giant Blackstone announced it would only allow vaccinated staff to work in its London office. But with high levels of vaccine scepticism among some of the most vulnerable sectors of society, how can bosses find the right balance? Can they really enforce a ‘no jab, no job’ policy?
“All employers have health and safety obligations to employees and visitors to premises, and that is an underlying legal requirement, but they also have other obligations,” says Holly Cudbill, associate and employment lawyer specialist at UK law firm Blake Morgan. “The UK government brought in a legal requirement for vaccination then reversed it, but even with such a requirement, how do you deal with employees who refuse to get vaccinated?” “Without an underlying legal requirement to be vaccinated, there is a risk of many unfair dismissal claims, and there is also a potential discrimination angle,” she adds. “Some people are unable to be vaccinated because of underlying health conditions that could be considered a disability and statistics show that ethnic minorities, certain religions and pregnant women have had lower uptake of vaccines.”
Holly Cudbill, employment lawyer at Blake Morgan.
Dissenting voices
Many companies in the US took the same decision as Blackstone. In August 2021, for instance, Johnson & Johnson joined a growing list of biopharma companies requiring a vaccine. Pfizer, the manufacturer of the first vaccine authorised by the US Food and Drug Administration (FDA), also mandated that workers should either be vaccinated or take weekly Covid-19 tests. Novartis, Genentech, Eli Lilly and Gilead followed suit, while others in the same industry, notably Sanofi and GlaxoSmithKline, encouraged vaccination but made it voluntary.
Elsewhere, some business leaders have spoken out against vaccine mandates. One notable example was Peter Rex, CEO of real estate tech company Rex, who told USA Today that he believes in the efficacy of vaccines but that vaccine mandates are “a war on conscience” – and that CEOs should trust their employees to make their own decisions.
Ultimately, the US Supreme Court blocked Biden’s rule requiring workers at large companies – some 84 million workers – to be vaccinated or masked and tested weekly, stating that it exceeded the administration’s authority. It did, however, rule that a more limited vaccine mandate could stand for staff at government-funded healthcare facilities.
“When the government comes in and says there is a mandate for companies with 100 or more people without understanding different cultures then it is problematic,” says Emily Dickens, chief of staff and head of government affairs at the Society for Human Resource Management (SHRM). “There are two big issues – culture clarity and one size does not fit all.” “Culture clarity matters, because by the nature of what an organisation does it may require people to be on top of each other to work,” Dickens adds. “Manufacturing, for example, will have a different culture to a company that works in an office building. People unable to be vaccinated because of other health issues may be able to work from home, but that is not possible in some cultures.”
A simple mandate for companies based on size does not reflect the needs of different industries or working requirements. One size does not fit all. “In a factory, everyone is on the line, so requiring a vaccine gives another level of safety like hard-toed shoes or a hardhat,” says Dickens. “In some cases, such as when people can do their jobs from home, an employer can give flexibility. A company can say it is not a mandate but is heavily required, and you may have to wear a mask if you are not vaccinated. Some talent leaves because there is a mandate, some leaves because there is not one.” In 2022, the Fifth Circuit Court of Appeals partially reinstated Biden’s vaccine mandate executive order requiring federal employees to be vaccinated, which had earlier been blocked by a district court judge in Texas. Nevertheless, Biden’s initial executive order did allow for religious and medical exemptions. This is where the lines get blurred, as exemptions raise the risk of creating a two-tier workforce.
Emily Dickens, head of government affairs at the Society for Human Resource Management.
Lines of division
According to work by researchers at the University of Glasgow and the University of Essex, and funded by the Medical Research Council, willingness to get a Covid-19 shot was high in the UK throughout the pandemic. Yet the study also found that certain groups – notably women, younger people, black people, and people of Pakistani and Bangladeshi origin – exhibited higher levels of vaccine hesitancy. “If a policy has so many exemptions, there is no point in having a policy at all,” remarks Cudbill. “In the UK, any employee with more than two year’s service is protected from unfair dismissal. Care homes forcing double vaccination to work on the premises had dismissed people and that is an ongoing issue in court.”
“However, in Covid-related claims,” Cudbill adds, “the tribunal has often come down on the side of the employer, providing that the employer was doing what was necessary to minimise risks in the workplace.”
While an employer cannot force an employee to be vaccinated, in other words, it can decide that only fully vaccinated people can attend its premises. This could, however, lead to people who prefer to continue working from home saying that they have not yet been vaccinated. Again, there is a risk of a two-tier workforce.
“Here in the US, companies are deciding their own mandates on first, second and booster shots,” says Dickens. “Our Centers for Disease Control and Prevention (CDC) took away the mask mandate, so have effectively said to employers that it is their responsibility to remind people to take care of themselves.”
“So flexibility is important,” Dickens adds. “We did stipulate that any new employee should be vaccinated and that fits with our culture, which is to think about it logically and compassionately. Know your culture and be clear what that culture means. Talk to your people and understand the issues. Understand who works for you.”
Communication is key
Mandate or not, employers must tread carefully to protect both the rights and the safety of their employees. “What is vital is the relationship between employer and employee,” says Cudbill. “People don’t leave a bad team, they leave a bad manager. Communication is the important thing, so the employer needs to be transparent about what the rules are.”
“The companies that did best during the pandemic were those that had a culture of transparency and communication,” Cudbill adds. “Employees who know what is going on are happier, even if the message is that we don’t know what is going on but we will communicate with you and let you know how things develop.”2
SHRM conducted extensive research into the enforceability of Biden’s initial vaccine mandate, and found that more than 90% of employers believed it would be hard to enforce. Furthermore, 89% expected such requirements would lead some employees to quit their jobs.
“There is a burden of figuring out how to manage people who say no to the vaccine,” says Dickens. “How do you treat people who want exemptions in the land of the free? The most challenging impact was on retaining employees. We have had a talent shortage even before Covid, with more jobs available than talent to fill them.”
“The best approach is to treat vaccine mandates as just another decision like any strategy or operational decision that could have a big impact on a business or organisation,” Dickens argues. While there is no straightforward answer to how big a role employers should play in public health issues, one thing is crystal clear – the organisations that have come through the pandemic best are those that have engaged in dialogue with their employees about health and safety rather than making decisions in boardrooms alone.