Can Dental Practices Enforce Mandatory Covid Vaccinations for their staff?
Dental practices and all the staff that work in them are eligible for early vaccination under the Government’s Covid-19 vaccination programme.
The question now arises, what can practices do if members of their team decline to take the vaccine?
As dental practices owe a duty of care to both their patients and their members of staff, it is now necessary for practice principals to navigate the difficult path between limiting the risk to their patients with the spread of the virus, whilst respecting their staffs’ rights and responsibilities.
Can a dental practice compel its staff members to take the Covid-19 vaccine?
The Government have, to date, stated that they do not intend to implement specific legislation requiring any individual or specific sector of the population to take a Covid-19 vaccine. No one working in the NHS or as a front-line care worker is being compelled to take the vaccine. The burden will therefore fall to dental practice owners to determine what, if anything, can be done to ensure that members of their team take advantage of their priority status and take the vaccine.
Of course, the best way to ensure that staff members take the vaccine is via informed consent. Encourage staff to take the vaccine by providing comprehensive information and education on the risks to the individual, the business and the wider public by not doing so.
But what happens, if despite being fully informed of the importance of the vaccine in the fight against the pandemic, a staff member still refuses to be vaccinated?
The starting point is that no one can be compelled to take any medication against their will. The choice must be freely made. But that does not mean that an employer cannot make it a condition of employment for an individual to be vaccinated in appropriate circumstances.
Can I make it a contractual obligation to take the Covid-19 vaccine?
For new employees it is possible to make it a requirement of the contract of employment to take the vaccine. However, it should be made clear in the interview process, if not earlier, and certainly in the written job offer that this will be a requirement of their engagement. They must be given the opportunity to decline the job offer in the event that they have a specific objection to taking the vaccine.
However, there is a risk that by refusing to employ a person as they would not have the vaccine, may result in a claim for indirect discrimination on the grounds of disability, pregnancy, religion or belief. If the requirement to have a vaccine substantially disadvantages a particular group, and disadvantages the employee, they can bring such a claim. You would be able to defend the claim if you can show the policy is a proportionate means of achieving a legitimate aim. An example of this might be if you did not exclude pregnant employees or those with suppressed immune systems from your vaccination policy.
What about existing staff members?
For a staff member who has been employed for less than 2 years, the practice could consider terminating the existing contract of employment on notice and offering new terms of engagement, making it a contractual obligation to be vaccinated.
If you chose to go down this route, then ensure that there is a comprehensive vaccination policy in place within the practice. Make it clear that those who are pregnant or have specific medical conditions would be exempt from vaccination. Consider if you will require a medical note or certificate to confirm that there is a medical reason for exemption. Again, there is a risk of a claim for indirect discrimination.
What about staff who have worked in the practice for over 2 years?
Instructing a member of the dental team to take the vaccine could be considered a “reasonable management instruction”. For those team members that have face to face contact with patients, some of whom who will be medically vulnerable, mandatory vaccination may be justified. For those who undertake back office functions, or those who can work from home, it would be significantly more difficult.
Failure to follow a reasonable management instruction can lead to a fair reason for dismissal, or a dismissal for “some other substantial reason”. However, the staff member must be given a reasonable opportunity to set out the reasons why they do not wish to take the vaccine. The practice owner will need to determine whether any objection is reasonable in the circumstances. For example, a medical concern or pregnancy would justify their refusal.
It must also be borne in mind, that all individuals who work in a dental practice have the right to raise health and safety concerns. Whilst it is unlikely that the staff member’s concerns regarding the efficacy or safety of the vaccine would be sufficient to justify refusal, particularly as regulators worldwide have confirmed that the vaccines are safe for public use, careful consideration, support, information provision and reassurance should be given to overcome concerns.
There are risks inherent in forcing staff members to take the vaccination. If it is mandated by the dental practice and the staff member has an adverse reaction, it is possible that a personal injury claim could follow if a causal link could be established.
Those who raise a philosophical objection to vaccinations more generally will be more difficult to manage. However, presumably the practices’ dentists, therapists and nurses will have already taken the hepatitis B vaccine, and as such would struggle to justify any purported “anti-vax” sentiments more generally.
Could an employee make a claim for discrimination on the basis that their anti-vaccination beliefs grant them protection under the Equality Act as a “philosophical belief”? This has not yet been tested before the courts or tribunals. However, their belief must be:
- genuinely held;
- be a belief and not an opinion or viewpoint based on the present state of information available;
- be a belief as to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance;
- and be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others
An objection to the Covid-19 vaccine, as opposed to ALL vaccines, is unlikely to amount to a philosophical belief. Further, a belief that is held only within the workplace and not at home or socially, would not amount to a belief. It is possible that a member of staff who has consistently expressed anti-vaccination views would be able to make a claim for indirect discrimination, however those that simply don’t want to take the Covid vaccine would not.
As always, be sensitive to religious sensitivities. For example, vaccines that are created using gelatine, would not be suitable for either Muslim or Jewish team members, and they could legitimately refuse to take them on the grounds of religious belief.
Other Issues to Consider
Dental practices have on the face of it been operating safely during the pandemic and there is no evidence of high transmission rates within the dental practice due to the levels of cross contamination control and PPE in use. The question must be asked, would vaccinations add sufficient further protection to other staff and patients such as to warrant mandatory vaccination?
This is particularly important bearing in mind that the current guidance suggests that the Covid vaccines in use will offer the individual who takes it some additional protection, it will not necessarily reduce the risk of you passing on the virus to others. If practices are not able to show increased protection for patients, and enhanced PPE and infection control protocols would remain, they may not be able to justify mandatory vaccinations.
As with everything dental, there is also a data protection issue to consider. If you do seek to mandate Covid-19 vaccinations within the dental practice, you must consider the data protection issues. Ensure you undertake a data impact assessment considering why you need evidence of vaccination and what you are intending to do with that data. For example, do you intend to inform your patients that all team members have been vaccinated to reassure patients? If so, you will need the consent of all those in the team who have been vaccinated before this information is made public.
This is definitely an area that is likely to change over time; if the vaccine, or a newly developed vaccine, does prevent transmission this is likely to affect your rationale for requiring staff to have it. If the NHS mandate that health care workers mush have the vaccine, this is also likely to assist you in mandating vaccination, especially if you have an NHS contract.
The easiest way to ensure your staff will have the vaccine is by them consenting to it. One way to assist in obtaining consent is to provide training on the vaccine, its effect and the risks involved. Hopefully this will help persuade those reluctant as to the benefits of the vaccine.
Julia Furley, Barrister and Partner
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