As the COVID-19 vaccination program rolls on, many employers will have a strong case for requiring employee vaccinations.
Currently, countries that have COVID-19 vaccination programs are on a voluntary basis – that is, countries cannot compel their citizens to be vaccinated. They can only ‘strongly encourage’ them. But can employers compel employees to get the vaccine?
For companies in the frontline healthcare industry, it can be argued that vaccination is mandatory under OSHA laws. For example, Malaysia’s Occupational Safety and Health Act 1994 as well as Singapore’s Workplace Safety and Health Act 2006 require employers to take, so far as is reasonably practicable, such measures as are necessary to ensure the safety and health of employees at work.
Given how infectious COVID-19 is, there is a case to argue that employees in the healthcare industry should receive compulsory vaccination as a condition of employment.
For Everyone Else
For ordinary workers, the OSHA argument for vaccination falls apart as there are other ways to ensure worker safety such as remote working.
Implementing a vaccination program at the workplace also carries health risks. Employers should be mindful of any potential side effects of any COVID-19 vaccine, particularly to employees that are classified in the “high risk” category. These can include employees above a certain age, or those with HIV with contraindicate vaccinations.
Mandating vaccination for these groups of people will breach the employer’s duty of care owed towards its employees, as the vaccine itself poses a health risk to them. It will also expose the employer to legal action if an employee is dismissed solely because of his or her vaccination status.
What to Do?
Employers will have to firstly consider the role of the employee. Employers will have to assess the vulnerability of those they come into contact with during their employment and the risk involved if they were to refuse to be vaccinated.
For healthcare workers, for example, there is precedent for this. In the US, hospital and nursing home staff are required to get an influenza shot each year given the nature of their work.
Otherwise, for other sectors, the argument is weaker. The employer would have to prove having the vaccination is a necessity under their health and safety duty, instead of offering alternatives like PPE or remote working.
But there is a way around this. For employers intending to implement a vaccination program or policy at the workplace, the most prudent course of action would be to secure the consent of their employees.
This can be done by providing employees with a consent form specifically referencing the COVID-19 vaccine. Employers will also have to provide sufficient medical information for employees to make an informed decision. Exemptions must be made for employees who cannot be vaccinated due to pre-existing health reasons. Incentivising vaccination, such as giving free time off or an allowance for vaccination should increase acceptance of the vaccine.