A related concern is that if workers who are not vaccinated for medical or religious reasons are then treated differently from other staff because they are not in the office, the company could be accused of discrimination. But if companies can show that they have a valid reason for collecting this data and that the request is a proportionate measure to achieve a legitimate objective, legal risks are diminished, said Lucy Lewis, employment lawyer and partner at Lewis Silkin.
“The challenge for employers is, do you take other Covid security measures within the company? Mrs. Lewis said. “For example, if you continue to maintain social distancing, if there is an element of wearing a mask, can you pass this test that requiring vaccination is reasonable within an organization?”
It is more common for companies to ask people to be doubly vaccinated or to show evidence of a negative Covid test, currently available for free in Britain, to get to the office, she said. She doesn’t expect requiring vaccines to work in the office to become the norm in Britain.
“Whether that is possible comes down to you being able to basically demonstrate to a court that it was necessary within your business,” Ms. Lewis said. “In the types of businesses where you have a lot of very vulnerable people, it is much more likely to be reasonable because the risk to those people is that much greater.”
Britain has gone the furthest to make vaccines mandatory at work in nursing homes. The government has said that anyone working or volunteering in nursing homes, unless they are medically exempt, must be vaccinated starting November 11. Even to take this step, Parliament had to pass a new law, which is now the subject of legal challenges.
In Britain, the vaccination rate is high, with 78 percent of the population over 12 vaccinated. But there are disparities across age groups, with younger cohorts less likely to be vaccinated. In the United States, there is evidence that vaccination mandates have increased rates above 90 percent within companies.
Companies can decide who enters their premises or not, in particular for health and safety reasons. But in the case of the coronavirus, while other measures like mask wear, ventilation and social distancing can reduce risk, it’s difficult to justify banning people from entering, Ms Cudbill said.
“I think they can justify it, but they just need to think about how and make sure it’s not just a gut reaction,” she said. “Because it will be challenged. There is absolutely no doubt.