As educational institutions return after the summer break, the debate on mandatory vaccinations for staff and students is impossible to avoid. Whilst there has been news of universities and workplaces in the US requiring attendees to be vaccinated in order to return, in the UK, organisations have been more hesitant when balancing their duty of care to staff and students with discrimination law.
This has led to businesses and other institutions taking a softer approach, informing and encouraging employees and, where appropriate, students, to take up the vaccine without making it a requirement for attendance.
In spite of various political statements, the underlying law which would apply to any mandatory vaccination policy has not changed, and nor has there been any formal guidance from the Government which might support a more directive position from employers or other venues, including those in educational settings, on vaccination.
The issues for educational establishments are twofold – a duty of care to students who attend their premises, and a duty of care to their employees.
Staff Vaccination policies
In relation to staff, there are twin issues of both protection from infection and therefore illness and possibly the ability to spread the virus, as well as beneficial arrangements for those who have been vaccinated who come into close contact with the virus (in that isolation is not required). Institutions thinking of enforcing vaccination or taking other measures such as not extending paid isolation leave for unvaccinated staff, or even going as far as terminating employment if a staff member is not vaccinated, should approach with caution.
There are risks in mandating vaccination, including opening an employer up to claims of indirect discrimination on grounds of religion or belief, disability, or pregnancy/sex for those who cannot have the vaccine, or personal injury claims in the event of an adverse side effect. There are also potentially data protection issues associated with asking for and proving vaccination status, which institutions would be wise to consider.
For all of those reasons, guidance in the UK (in particular, from the employment advisory body ACAS) has so far focused on advising employers to encourage and support staff to get a vaccination (such as by sharing the facts on vaccination or offering paid time off to do so). Some employers are choosing to approach this by putting in place a formal “Covid-19 vaccination policy” (which may set out the employer’s position on vaccination, but in most cases doesn’t impose an obligation upon employees to be vaccinated). Policies may also treat vaccinated and unvaccinated staff differently, e.g. where the obligations to self-isolate vary. Where such policies go further than legal requirements, e.g. with regard to pay for periods of isolation, an employer should consider exceptions so that those who are not able to have the vaccine are not disadvantaged as far as is possible.
Vaccination for students
Whilst much of the above is relevant to students too, there’s an important distinction between students above school leaving age, who can make a choice for themselves, and children under 18, who may or may not be vaccinated and may need parental consent. The risk/benefit analysis is also different for those who are younger in terms of their likely vulnerability to the disease. So far in the UK only children aged 16 and 17 have been offered the vaccine. On 3 September, the JCVI declined to recommend the extension of vaccination to all 12-15 year olds, although those with medical conditions or who live with others who are vulnerable to COVID-19 will be offered the vaccination. The decision on wider vaccination of these groups has been left in the hands of the chief medical officers of each of the four nations of the UK, and while it is hoped that a joint decision can be reached, at time of writing the outcome is unknown, which will only add to the uncertainty facing educational institutions.
There have been reports from within government that there are no plans to bring in requirements for covid passports in higher education institutions for university students. That they are not required logically would not of course prevent an independent institution going ‘above and beyond’ in its own approach, but whether this would be seen as out of step in the UK or the higher education sector and (even if it was) whether that could be viewed unfavourably by staff or students remains to be seen.
Unfortunately at this point there are no hard-and-fast answers (and none of the varying approaches have been legally tested as yet). Each organisation should work through their risk assessments and act or mitigate accordingly. It is also worth bearing in mind that those who have been vaccinated can still catch and transmit COVID-19 and so other protective measures such as improved ventilation should be considered and implemented alongside a vaccination policy. When looking at any COVID-19 measures, thought should be given to those with disabilities. Those who rely on lip reading can struggle when mask wearing is mandated. Relaxing of COVID-19 security measures can also make those with vulnerabilities feel unsafe or uncomfortable and thought should be given to how to make spaces inclusive.
So what can be done? Schools, colleges and universities should aim to inform staff and students (where applicable) about vaccination. Mandating or requiring proof of vaccination opens up issues that can be complex and put institutions at risk. Any other COVID-19 security measures should be carefully considered to ensure that they are inclusive, in particular to those with disabilities.