Can contractors force workers to get vaccinated?

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As covid-19 vaccination accelerates, businesses must decide their own inoculation policies. James Pomeroy explains the complexities facing the construction sector

The coronavirus vaccines are offering much hope for the world, the construction industry included, but with prioritisation lying with those most vulnerable, it will be some time until all workers are eligible for the inoculation. However, the spread of misinformation – alongside religious and health concerns – has led to many taking a stance against receiving the jab.

For contractors, where many team members work within close proximity of each other, this is particularly problematic. The ethical and legal principles, including medical consent and voluntary participation, need to be delicately managed because the vaccine is not solely an issue of science. Workers have ethical and religious obligations that construction businesses need to be aware of.

With elderly and vulnerable adults being prioritised, there is time to plan an effective response before workforces are eligible. Employers considering whether to mandate the vaccine should seek legal advice and be aware that compelling employees to undergo any form of medical treatment is generally not permitted. 

Employers are obliged to ensure religious beliefs and personal medical rights are considered within any policy, and this must be the case for the covid-19 vaccine. In the case of an employee who cannot be vaccinated, possible accommodations must be considered, such as transferring to a role with fewer interactions, telework or continued use of personal protective equipment. However, other avenues, such as more frequent testing, may also be implemented should workers decline the vaccine.  

Data privacy is likely to play an integral part in any policy. If employers are going to ask about a worker’s health status, employees have the right to withhold information under data protection laws. Health is private and must be respected, and employers must ensure this is maintained when considering a vaccine policy. 

During the pandemic, Lloyd’s Register has worked closely with contractors across the world to audit their health and safety management systems and ensure workers are kept safe. One question that has appeared from a number of contractors is whether they should incentivise vaccination, particularly where healthcare is an employment benefit. This should be considered with caution, given the legal ramifications and prospect of discriminating an individual or protected group.

For those refusing to take the vaccination, but not based on personal medical or religious grounds, employers have a role in promoting the vaccine and countering some of the misinformation found online. It is in their interest to educate workers so that they make decisions based on evidence, but communication must include an element of employee engagement. 

Internationally recognised occupational health and safety standards – such as ISO 45001 – hold staff consultation and engagement in high regard. It is therefore imperative that contractors communicate with employee representatives and unions as a minimum requirement over any vaccination policy.

James Pomeroy is group health,safety, environment and security director at Lloyd’s Register.

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