A related concern is that if workers who aren’t 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 they have a justifiable reason for collecting this data and the request is a proportionate measure to achieve a legitimate aim, the legal risks are diminished, said Lucy Lewis, an employment lawyer and partner at Lewis Silkin.
“The challenge for employers is, is it justifiable if you’re taking other Covid-secure measures within the business?” Ms. Lewis said. “For example, if you’re continuing to retain social distancing, if there’s an element of mask wearing, can you satisfy that test that requiring vaccination is reasonable within an organization?”
It’s more common for companies to ask people to be double-vaccinated or show evidence of a negative Covid test, currently freely available in Britain, to go into the office, she said. She doesn’t expect requiring vaccines to work in the office to become the norm in Britain.
“Whether it’s possible comes down to you being able to essentially demonstrate to a court that doing it was necessary within your business,” Ms. Lewis said. “In types of businesses where you’ve got a lot of very vulnerable people, it’s much more likely to be reasonable because the risk to those people is that much greater.”
The furthest Britain has gone in making vaccines compulsory for work is in nursing homes. The government has said anyone working or volunteering in nursing homes, unless medically exempt, must be vaccinated beginning Nov. 11. Even to take this step, Parliament had to pass a new piece of legislation, which is now the subject of legal challenges.
In Britain, vaccine uptake is high, with 78 percent of the population over the age of 12 vaccinated. But there are disparities across age groups, with younger cohorts less likely to be vaccinated. In the United States, there is some evidence that vaccine mandates have increased rates above 90 percent within companies.
Businesses can decide who does and doesn’t enter their premises, especially for health and safety reasons. But in the case of the coronavirus, if other measures like mask-wearing, ventilation and social distancing can reduce the risks, it’s difficult to justify barring people’s entry, Ms. Cudbill said.
“I think that they can justify it, but they just need to think about how and make sure it’s not just a knee-jerk reaction,” she said. “Because it will be challenged. There’s absolutely no doubt.”