No Jab, No Job? Vaccine Requirements and Anti-Discrimination Law

Mark Bell, Trinity College Dublin

 

As the roll-out of vaccines becomes more widespread, there is a growing debate on whether, and to what extent, employers may impose requirements on their employees to be vaccinated against Covid-19. In the media, this has been given the shorthand of ‘no jab, no job’ policies, and there have been some reports of employers expressing their intent to adopt such measures, especially in the care home sector. In response, commentary has identified a range of legal issues that may constrain employers from introducing such measures. These include fundamental rights, such as privacy and rights to make personal choices relating to medical treatment. One issue that arises frequently in such discussions is whether a duty to vaccinate breaches anti-discrimination law. 

 

Protected Grounds

A starting point for exploring this issue is to identify which of the protected characteristics found within anti-discrimination law may be engaged by a vaccine obligation. In Ireland, the Employment Equality Acts (EEA) 1998-2015 prohibit discrimination on nine grounds: gender, civil status, family status, sexual orientation, religion, age, disability, race, Traveller community. Being treated differently because of a personal objection to any or certain vaccines is not a protected ground; it is only where the reason for not getting vaccinated is connected to one of the protected grounds that the Act is engaged. Notably, section 6(2)(e) defines the religion ground as ‘religious belief’, or not having such a belief. A deep-seated objection to vaccines, which is not rooted in any religious belief, will not fall within the category of beliefs protected by the EEA. 

 

Indirect Discrimination

If a workplace vaccination policy applies to all employees, or all employees performing a particular type of work, then it is unlikely to constitute direct discrimination. It should be noted that section 6(2A) EEA prohibits less favourable treatment ‘related to’ pregnancy. Currently, there are restrictions on when Covid vaccines may be taken during pregnancy; the HSE recommends that vaccination occurs after 14 weeks of pregnancy and before the end of 33 weeks. If an employee is temporarily unable to comply with a vaccine requirement for a reason related to pregnancy, then it would very likely constitute unlawful discrimination if she was treated less favourably as a result. 

Although direct discrimination is unlikely to arise, there are circumstances where a vaccine obligation is potentially in breach of the prohibition of indirect discrimination. This exists where an apparently neutral provision puts persons with a particular characteristic (eg religious belief) at a particular disadvantage, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (s.22 and s.31 EEA).

Obviously, at the present time, vaccines are not generally available to the working age population and they are being primarily distributed by age categories. There will be a transitional period when, for example, persons over 55 have access to the vaccine, but those in younger age cohorts generally do not. Clearly, at that point in time, to advertise a job as only open to those who have already been vaccinated would place persons under the age of 55 at a particular disadvantage. That situation is, however, temporary, so it is more important to focus on what happens when we have reached the point where any employee could have the vaccine if they chose to do so. 

The first scenario to consider is those employees who have not received the vaccine due to medical advice. Currently, persons who have had a severe allergic reaction to any of the ingredients in the vaccine are advised not to get a Covid vaccine. It is possible that a person falling into this category will satisfy the definition of disability within s.2(1) EEA, so a vaccine obligation could be indirectly discriminatory on grounds of disability unless the employer can justify this requirement. In addition, there is a duty on employers to provide reasonable accommodation for persons with disabilities (s. 16 EEA). An employer would have to explore whether appropriate measures could be taken in this situation to allow the person to continue in employment, such as working from home. In relation to disability discrimination, it is important also to note that the definition of disability extends to persons with psychosocial impairments, such as anxiety disorders or phobias. There may be situations where a person’s reason for not getting vaccinated is related to a psychosocial impairment, which may trigger the application of the disability provisions of the EEA. 

Another scenario that may arise relates to employees who decline to get vaccinated due to their religious beliefs. Many faith communities are supportive of the vaccination programme, so it appears that it will be less common for individuals to refuse vaccination on religious grounds (at least in Ireland). Nevertheless, it is reasonable to anticipate that there may be individuals who explain their objection to vaccination on the basis of religious belief. For example, in the USA, some have expressed religious objections to the Johnson and Johnson vaccine. With respect to establishing indirect discrimination, individuals whose religious practices are less common may find it difficult to demonstrate that that a group of persons, sharing their characteristic, is placed at a particular disadvantage. If particular disadvantage to persons sharing a particular religious belief can be established, then it remains open to the employer to seek to justify the requirement. 

 

Justifying a duty to vaccinate

This brief discussion indicates that anti-discrimination law is not necessarily or automatically incompatible with an employer imposing a duty on existing or future employees to take a Covid vaccine. Yet it is conceivable that circumstances arise where an objection on the part of an individual engages anti-discrimination law. Even then, there is flexibility within the law on indirect discrimination for an employer to demonstrate that their policy is objectively justified. This will require the employer to identify the aim that the policy is pursuing and to demonstrate that a mandatory vaccination requirement is both appropriate and necessary as a means of pursuing that aim. Necessity is typically read by courts as implying proportionality. Consequently, an employer could be required to show that the requirement was necessary for the specific role that the employee is performing and that no less restrictive measure would be sufficient. With this in mind, employers contemplating such policies would be well-advised to consider carefully their rationale and whether they need to be extended to all employees or only certain roles. Thorough analysis of such measures will also need to address the wider range of legal issues that have not been discussed in this blogpost, including employees’ rights under the Constitution or the European Convention on Human Rights. 

 

Mark Bell is Regius Professor of Laws, School of Law, Trinity College Dublin. 

 

Suggested citation: Mark Bell, ‘No Jab, No Job? Vaccine Requirements and Anti-Discrimination Law’ (25 March 2021)  https://tcdlaw.blogspot.com/2021/03/no-jab-no-job-vaccine-requirements-and.html