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The long-awaited news of the coronavirus (COVID-19) vaccine candidates last week has been well received by the scientific community around the world. For employers, the news has led to consideration of the possible implications of a successful workplace vaccine. While there is much uncertainty around the vaccines themselves and how they can be delivered to the general public, the UK government is currently not proposing any mandatory vaccination program. Employers in the UK are unlikely to be able to impose such a program on their workforce in the short term.
Pfizer and BioNTech Vaccines Candidates
On November 9, 2020, Pfizer and BioNTech were the first to announce that an interim analysis showed that their COVID-19 vaccine candidate is 90% (95% as of November 18, 2020) effective in protecting people against COVID -19. A week later, on November 16, 2020, the American company Moderna announced that its COVID-19 vaccine candidate is 94.5% effective. The Moderna vaccine is not expected to be available outside of the United States until 2021. The Pfizer and BioNTech vaccine has been tested in 43,538 participants, with 42% of the participants from diverse backgrounds and with no safety concerns raised. However, the findings are only based on provisional data, so it is not yet clear whether the vaccine prevents someone from spreading the virus or simply developing symptoms, or if they are just as effective for the elderly who are at higher risk. It is also unlikely that definitive assumptions can be made about 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 below minus 70-80 degrees), as well as logistics and manufacturing challenges to achieve mass immunization.
Pfizer and BioNTech plan to apply for an emergency approval to be able to use the vaccine by the end of November 2020 and hope to exceed the safety thresholds set by the European Medicines Agency (EMA) and the U.S. Food and Drug Administration. (FDA). Manufacturing is already in progress and Pfizer expects to be able to supply up to 50 million doses of vaccine in 2020 and up to 1.3 billion doses in 2021. Data indicates that the vaccine will be required in two doses, three weeks apart. Countries around the world will need to decide who will be given priority for vaccination, although a limited number of the population is already expected to receive the vaccine by the end of 2020. The UK is expected to receive 10 million doses of the vaccine. Pfizer BioNTech vaccine by the end of 2020 and another 30 million doses have already been ordered.
UK government response
During a press conference on the coronavirus on November 9, 2020, Prime Minister Boris Johnson stated that the government had not yet seen all the safety data and that the findings have not yet been peer reviewed. The government also released a formal response to the vaccine announcement on November 9, 2020, reiterating that the drug regulator will only be able to assess whether the vaccine can be made available to the general public once the safety data has been released. formally and the government has trusted that the vaccine meets safety and efficacy standards. The government spokesperson also stated that once approval is obtained, the NHS “are ready to start a vaccination program for those most at risk. “In addition, on October 16, 2020, the UK government outlined changes to the 2012 Human Medicines Regulations, which included the expansion of the workforce trained to be able to administer COVID-19 and flu vaccines and, Along with this, the implementation of strengthened safeguards to support the Medicines and Healthcare Products Regulatory Agency (MHRA) to grant a temporary authorization (pending the granting of a full license) for new vaccines and treatments needed to combat health threats including COVID-19.The goal of these changes is to make it easier for patients and healthcare workers to access the necessary vaccines and protect them from diseases such as COVID-19.
While a final decision has not yet been made, the UK is likely to give priority to hospital staff, nursing home workers, as well as the elderly who are at higher risk of serious illness and nursing home residents. age to receive the vaccine. People under the age of 50 and without medical problems will probably be the last category to get vaccinated. In particular, Health Secretary Matt Hancock has confirmed the UK government’s position towards mass vaccination, stating that “We are not proposing that this be mandatory, especially since I think the vast majority of people are going to want to have it.. “
A UK-Qide Mandatory Vaccination Program?
Under current legislation, the UK government cannot force members of the public to get vaccinated.
The Public Health (Disease Control) Act 1984 (Public Health Act) gives the UK government powers to prevent, control or mitigate the spread of contamination or infection. However, the legislation specifically states that people should not be forced to undergo any mandatory medical treatment or vaccination. The Coronavirus Act 2020 (COVID-19 Act) recently extended this ban to Scotland and Northern Ireland.
The prohibition of compulsory medical treatment or vaccination is reflected in the government’s Green Book on immunization 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 the person’s consent must be obtained before beginning any medical treatment, including the administration of all vaccines. Similarly, the NHS Constitution, which outlines a list of responsibilities directed at patients who intend to use its services, includes a non-legally enforceable request for “Please get involved in important public health programs like vaccination.”
Consent and voluntary participation are essential.
Given the circumstances, and in the absence of a significant deterioration of the pandemic leading to a shift in focus, it is likely that any subsequent legislation regarding COVID-19 vaccination will still be subject to this blanket ban on mandatory medical treatment or vaccination.
If the government were to change its stance, with a view to making vaccination mandatory, it would undoubtedly face significant legal challenges under human rights law, including (for example) Article 8 of the European Convention on Human Rights. This article protects the private and family life of a person and includes the right to dignity, personal autonomy and physical and psychological integrity, that is, a person has the right not to be physically or psychologically interfered with. Any compulsory vaccination program could (depending on the circumstances) also include article 3 on degrading treatment.
If the government can’t bind, could an employer?
At present, we consider this to be highly unlikely.
The UK government does not have the legal power to impose vaccines. Similarly, UK employers have no legal right to force an employee to get vaccinated.
It is possible that an employer theoretically has a prima facie right to require vaccination in customary law, for example based on a power of attorney under an employment contract through a widely drafted medical examination clause. However, any such power is likely to trigger human rights concerns (as mentioned above); can violate serious criminal laws regarding causing unlawful injury to others; and, in any case, a vaccine could only be legally administered as long as the individual consented to such treatment. It is highly doubtful that an employee can be described as consenting to treatment under any degree of duress by his employer.
From an employee relations perspective, an employer-mandated vaccination program is unlikely to be well received by employees in any event, especially in the early stages of its implementation, when some employees may have major concerns (or simply have doubts) about its safety and efficacy Most employers are much more likely to take a similar approach to the flu vaccine, providing information on vaccine availability (following any published government guidance) and / or making arrangements to offer the vaccine to employees of their choice. have it but only on a voluntary basis. This would reduce the potential for legal challenges (for the reasons outlined above), as well as any backlash from those who oppose 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 participating in certain events, if they have not received the vaccine. While this would not technically constitute forcing employees to be vaccinated, in practice it is likely to have the same effect. However, such a move is unlikely to be unanimously welcomed and is likely to still create legal risk. Employees may, for example, have several (valid) reasons for not wanting to receive a vaccine, some of which may also be related to characteristics protected by equality legislation. Exclusion of employees in such circumstances could lead to claims of unfair treatment, such as discrimination, or (if an employee resigned in protest) of constructive unfair dismissal. Employers should be aware of these risks and not appear tough.
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 Occupational Safety and Health Act 1974. This is likely to be relevant where employees are at a substantially higher risk of contracting COVID. -19 due to the nature of the work they do (for example, certain medical personnel or those who are “on the front lines” in the battle against COVID-19).
Each case will need to be carefully considered on the basis of its facts, but the circumstances in which a duty to offer may be involved are likely to be limited and not the concern of employers generally.
conclusion
There is still great 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 program will compel or require people to be vaccinated – consent and free choice they will remain fundamental.
In those circumstances, it is difficult to imagine a legal scenario in which an employer could force UK employees to get vaccinated.
We hope that the UK government will issue further guidance in this area in due course, including for employers.
This LawFlash reflects our current point of view and is intended to inform employers about issues related to this topic. Morgan Lewis has advised employers on various COVID-19 issues and will continue to closely monitor any new developments.
