Advocate Sarah Millar, in an article entitled ‘Vaccinations and the workplace – no jab, no job?’ on the Ferbrache and Farrell website, said that an employer might be able to require a staff member to have had the jab first.
‘Broadly speaking, it is possible for an employer to make that requirement,’ she wrote.
‘An employer has a duty of care to its employees, which includes managing any risk of infection in the workplace.
‘We have seen this in action during the lockdowns, when many employers put policies in place saying that their employees must work from home, and limiting the amount of workers allowed in the workplace at any one time. This can extend to ensuring that its employees are vaccinated in order to protect others.’
It was clear that some people had medical, religious or other reasons for not having the vaccine and the States had not indicated that it was going to force islanders to have it.
A ‘no jab, no job’ policy, giving an employer grounds to refuse staff to return to work on the basis of capability, including health or other physical reasons, might however be enforceable.
‘This will apply where it is reasonable for the employer to have implemented a vaccine policy,’ wrote Advocate Millar.
But she said that since this was an untested area, an employer would be wise to seek legal advice before taking such a step.
‘Employers should also be wary of enforcing any such policy too rigidly.’
She gave an example from the current employment law which gives protection against employees being dismissed due to pregnancy so if an employee refused to take the vaccine due to being pregnant and was dismissed, this could be classed as unfair.
It was also possible that the new disability discrimination law would offer protection for someone refusing the vaccine on medical or disability grounds.
Advocate Millar concluded by saying that many employers might decide to avoid bringing in a mandatory vaccine policy by continuing with home-working for staff and limiting the numbers who work in the office while at the same time encouraging vaccinations.
‘Employers with questions or concerns should always seek legal advice before taking any steps.’
. Deputy Peter Ferbrache, chairman of the Civil Contingencies Authority, which is directing the Covid-19 response, is listed on the Ferbrache and Farrell website as a consultant and notary public. It states that his role is ‘to assist the partners with the business and affairs of the practice’.