The eagerly anticipated news of coronavirus (COVID-19) vaccine candidates last week has been welcomed by the scientific community across the globe. For employers, the news has prompted consideration of the potential implications of a successful vaccine for the workplace. While there is much uncertainty surrounding the vaccines themselves and how they may be administered to the public at large, the UK government is not currently proposing any mandatory vaccination programme. It is unlikely that employers in the United Kingdom will be able to mandate any such programme among their workforce any time soon.
PFIZER AND BIONTECH’S CANDIDATE VACCINES
On 9 November 2020, Pfizer and BioNTech were the first to announce that an interim analysis demonstrated that their vaccine candidate against COVID-19 is 90% (95% as of 18 November 2020) effective in protecting people from COVID-19. A week later, on 16 November 2020, US company Moderna announced that its COVID-19 vaccine candidate is 94.5% effective. The Moderna vaccine is not expected to be available outside the United States until 2021. The Pfizer and BioNTech vaccine has been tested on 43,538 participants, with 42% of the participants from diverse backgrounds and with no safety concerns raised. However, the findings are only based on interim data, such that it is still unclear whether the vaccine stops someone from spreading the virus or simply from developing symptoms, or whether they are just as effective for the elderly who are at higher risk. It is also unlikely that any definitive assumptions can be made on how long immunity will last, a question that may take some time to answer. Other hurdles include storage issues (the Pfizer BioNTech candidate must be stored at below minus 70-80 degrees), as well as manufacturing and logistical challenges in achieving mass immunisation.
Pfizer and BioNTech plan to apply for emergency approval to be able to use the vaccine by the end of November 2020 and hope to pass the safety thresholds set by the European Medicines Agency (EMA) and the US Food and Drug Administration (FDA). Manufacturing is already in progress with Pfizer expecting to be able to supply up to 50 million vaccine doses in 2020 and up to 1.3 billion doses in 2021. The data indicates the vaccine will be required in two doses, three weeks apart. Countries worldwide will need to decide who will be given priority for the vaccination although a limited number of the population is already expected to get the vaccine by the end of 2020. The UK is expected to get 10 million doses of the Pfizer BioNTech vaccine by the end of 2020 and a further 30 million doses have already been ordered.
UK GOVERNMENT’S RESPONSE
During a coronavirus press conference on 9 November 2020, Prime Minister Boris Johnson stated that the government had yet to see the full safety data and that the findings are also yet to be peer-reviewed. The government also published a formal response to the vaccine announcement on 9 November 2020 reiterating that the medicines regulator will only be able to assess whether the vaccine can be made available to the public at large once the safety data has been formally published and the government is confident that the vaccine meets the safety and effectiveness standards. The government’s spokesperson also stated that once approval is obtained, the NHS “stands ready to begin a vaccination programme for those most at risk.” Further, on 16 October 2020, the UK government outlined the changes to the Human Medicines Regulations 2012, which included the expansion of the trained workforce to be able to administer COVID-19 and flu vaccines and alongside it, the implementation of reinforced safeguards to support the Medicines and Healthcare products Regulatory Agency (MHRA) to grant temporary authorisation (pending the grant of a full licence) for new vaccines and treatments required to combat public health threats, including COVID-19. The aim of these changes is to make it easier for patients and healthcare workers to access the necessary vaccines and provide them with protection from diseases such as COVID-19.
While a final decision is yet to be made, it is likely that the United Kingdom will prioritise hospital staff, care home workers as well as the elderly who are most at risk of serious disease and older care home residents for receiving the vaccine. People under the age of 50 and without medical issues will likely be the last category to be vaccinated. Notably, Health Secretary Matt Hancock has confirmed the UK government’s position towards mass vaccination, stating that “we are not proposing to make this compulsory – not least because I think the vast majority of people are going to want to have it.”
A COMPULSORY UK-QIDE VACCINATION PROGRAMME?
Under current legislation, the UK government cannot compel members of the public to be vaccinated.
The Public Health (Control of Disease) Act 1984 (Public Health Act) provides the UK government with powers to prevent, control, or mitigate the spread of a contamination or an infection. However, the legislation specifically provides that individuals must not be compelled to undergo any mandatory medical treatment or vaccination. The Coronavirus Act 2020 (COVID-19 Act), recently extended this prohibition to Scotland and Northern Ireland.
The prohibition on compulsory medical treatment or vaccination is reflected in the government’s Green Book on immunisation and in The NHS Constitution. The Green Book provides up to date information on vaccines and vaccination procedures for vaccine preventable infectious diseases. It states that consent from the individual must be obtained prior to the start of any medical treatment, including the administration of all vaccines. Similarly, the NHS Constitution, which outlines a list of responsibilities directed at patients intending to use its services, includes a non-legally enforceable request to “please participate in important public health programmes such as vaccination.”
Consent and voluntary participation are key.
In the circumstances, and in the absence of a significant deterioration in the pandemic prompting a change in approach, any subsequent legislation regarding a COVID-19 vaccination is likely to still be subject to this general prohibition on compulsory medical treatment or vaccination.
Were the government to change its stance, with a view to making vaccination compulsory, it would undoubtedly face significant legal challenges under human rights laws, including (for example) under Article 8 of the European Convention on Human Rights. This Article provides protection for an individual’s private and family life and includes the right to dignity, personal autonomy, and physical and psychological integrity, i.e., that an individual has the right to not be physically or psychologically interfered with. Any compulsory vaccination programme might (depending on the circumstances) also engage Article 3 regarding degrading treatment.
IF THE GOVERNMENT CANNOT COMPEL, COULD AN EMPLOYER?
At present, we consider this highly unlikely.
The UK government has no legal power to compel vaccinations. Similarly, employers in the United Kingdom have no statutory right to compel an employee to be vaccinated.
It is possible that an employer might theoretically have a prima facie right to compel a vaccination at common law, for example based on a power under a contract of employment through a widely-drafted medical examinations clause. However, any such power is likely to trigger human rights concerns (as referenced above); it may cut across serious criminal laws regarding causing unlawful injury to others; and, in any event, a vaccine could only be lawfully administered provided that the individual consented to such treatment. It is highly doubtful that an employee could be described as consenting to treatment under any degree of compulsion by their employer.
From an employee relations’ perspective, it is unlikely that in any event an employer-mandated vaccination programme would be well-received by employees, particularly in the early stages of its rollout when some employees may have strong concerns (or simply be hesitant) about its safety and efficacy. It is much more likely that most employers will take a similar approach to the flu vaccine, providing information about the availability of the vaccine (following any published government guidance) and/or making arrangements to offer the vaccine to employees who wish to have it but on a voluntary basis only. This would reduce the potential for legal challenges (on the grounds outlined above), as well as any backlash from those opposed to the vaccine.
In theory, it may also be possible for employers to implement other (more indirect) measures such as not allowing employees to return to the office, or to take part in certain events, if they have not had the vaccine. While this would not technically constitute compelling employees to have a vaccination, in practice it is likely to have the same effect. Such a measure, however, is unlikely to be unanimously welcomed and is still likely to generate legal risk. Employees may, for example, have various (valid) reasons for not wishing to have a vaccine, some of which might also relate to protected characteristics under equality legislation. Excluding employees in such circumstances might lead to claims of unfair treatment, such as of discrimination or (were an employee to resign in protest) of constructive unfair dismissal. Employers should be mindful of these risks and of appearing heavy-handed.
A DUTY TO OFFER?
In certain circumstances, some UK employers may have a duty to offer a COVID-19 vaccine for health and safety reasons under the Health and Safety at Work Act 1974. This is likely to be relevant where employees are at a materially increased risk of contracting COVID-19 because of the nature of the work that they undertake (e.g., certain medical staff or those otherwise “on the frontline” of the battle against COVID-19).
Each case will need to be carefully considered on its facts, but the circumstances where a duty to offer may be engaged are likely to be limited and not incumbent on employers at large.
There is still a great deal of uncertainty regarding a future successful COVID-19 vaccine. However, based on current legislation, government announcements and medical practice to date, it is unlikely that any future UK COVID-19 vaccination programme would compel or mandate that individuals be vaccinated: consent and free choice will remain critical.
In those circumstances, it is challenging to envisage a lawful scenario in which an employer could compel UK employees to be vaccinated.
We expect the UK government to issue more guidance in this area in due course, including for employers.
This LawFlash reflects our current view and is intended to inform employers of the issues surrounding this topic. Morgan Lewis has advised employers on several COVID-19 issues and will continue to monitor any new developments closely.