As COVID-19 vaccines become available, many employers are asking if they can require employees to get vaccinated, and what they can do if workers refuse. The Equal Employment Opportunity Commission (EEOC) weighed in Dec. 16 with new guidance that answers some workplace vaccination questions.
There is no legal requirement for any person to receive the Covid vaccination and it is down to each individual to decide if they wish to receive it. The hope is that most people take the vaccination in the hope that collectively we can all return to “normal life”. However, as it is not a legal requirement to get the vaccine then in the event your employee refuses to get the vaccine you cannot force them to go and receive it.
Assuming that you have up to date contracts of employment for your employees we believe it is a reasonable request from an employer that an employee receives a vaccination and in the event, an employee refuses you may be able to invoke disciplinary proceedings against the employee. We accept that this a very fluid area of law at present and will no doubt end up in litigation. However, if you are making your decision to protect other employees, clients/customers of the business then surely it is a reasonable request. However, consideration needs to be taken of the situation where an employee refuses to have the vaccination who has very little contact with any other person, in such a situation could you put in other steps to protect other employees? In addition, there will be small groups of people who cannot take the vaccination for medical reasons.
The big question we are being asked is can we terminate an employees contract of employment if they refuse to get the vaccination? We believe the answer is most likely yes subject to this being a reasonable request from the employer and subject to you following the correct disciplinary procedures. You would have had to take consideration of all other options such as could the person work from home permanently, this is not possible in the retail sector but may be possible for limited office work. If you are going to go down this route you must ensure that your contracts of employment, disciplinary policies and health policies are up to date and compliant as in the event of litigation you need to be able to justify your decision and demonstrate that the dismissal of the employee was fair.