‘No Jab No Job’ Policies

In our Spring employment update, we looked at ‘no jab no job’ policies and discussed whether these could or should be introduced into the workplace. As we prepare for our Autumn employment update, this is still a hot topic and causing controversy.

What is a ‘no jab no job’ policy?

A mandate that staff may not return to their workplace unless they are fully vaccinated – meaning two Covid vaccinations in line with current guidance. 

Big name US businesses such as Morgan Stanley, Google and Facebook have been in the press following announcements that their staff will not be permitted to return to work until they’re fully vaccinated, which has caused speculation amongst UK businesses as to whether they should follow suit.

Dominic Raab, UK foreign secretary, has added further fuel to the controversy with his comment that mandatory vaccinations are a “smart policy” for employers. 

However, we need to bear in mind that US legal policy is very different to our own and that the US businesses listed have been able to make alternative arrangements for unvaccinated staff – such as home working.

Could or should I have a ‘no jab no job’ policy?

There is no doubt that there are potential benefits of such a policy, not least the reduction of the risk of transmission of Covid within the workplace. 

If your workforce is fully vaccinated you should have fewer cases of Covid, fewer staff needing to self-isolate and fewer people worrying about the risks they may face in coming in to work. If any of your staff are particularly vulnerable to Covid, for example due to underlying health conditions, it allows you and them greater peace of mind about their environment.

However, the current government guidance is that such policies are only permissible within the care sector where close contact is required and where service users may be particularly vulnerable. 

This means that you should only be able to introduce a ‘no jab no job’ policy if you can demonstrate that there is a significant risk that cannot be addressed through other means such as social distancing and PPE.

What are the risks of using a ‘no jab no job’ policy?

If you introduce a ‘no jab no job’ policy without the significant risk justification (above), you run the risk of claims of discrimination from job applicants and members of staff who have not been vaccinated. For example:

• Pregnancy – until recently, the government guidance was that pregnant women should not be vaccinated. Although this has now changed, you may have pregnant employees who have not had the vaccine because they haven’t had time since the guidance has changed or because they feel worried about the potential impact of the vaccine given the fairly recent about-face.
• Disability – you may have members of staff who have been advised not to get vaccinated or who are worried about getting vaccinated due to a lack of information about how the vaccine may interact with certain health conditions.
• Religion or belief – our laws protect people who hold religious views or other philosophical or similar beliefs. You may have members of staff who hold beliefs that conflict with them getting vaccinated. Although the topic of vaccination is causing controversy for some workplaces, we need to be respectful of other people’s beliefs or we run the risk of discrimination.
• Age – although vaccinations are being made available to anyone aged 18 or over, your young members of staff may not have had time to get fully vaccinated yet.

What are the alternatives?

If you can’t have a ‘no jab no job’ policy, you can still take practical steps to manage the risk of transmission of Covid in your workplace, particularly if you know of any members of staff who may be particularly vulnerable to catching Covid.

Now would be a good time to update your Covid risk assessments and decide whether you wish to introduce a two-pronged approach to risk management – one for vaccinated staff and one for unvaccinated staff.

For example, if your assessment indicates that staff who are not fully vaccinated may pose a higher risk, you may consider whether it would be reasonable to address that risk through greater use of home working, social distancing and use of PPE. 

If you’re facing a similar dilemma, please get in touch and we’ll do our best to guide you through.