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Analysis

Are vaccine passports the future of work?

Many US companies have started to require employees prove their vaccine status before they return to the office.

Matt Withers

vaccine passport
Credit: KIRA YAN via Twenty20.

Unleash Your PeopleBut are vaccine mandates to return to the office legal outside of the US?

To insist or not to insist on a COVID-19 jab?

That is the question employers across the US and beyond are grappling with as they seek to get staff back into the workplace safely.

President Joe Biden’s administration has pressed for mandatory vaccines for government and soldiers, a policy replicated by a swathe of corporate America, including Walmart, Disney and United Airlines, and a number of Democratic governors, including California’s Gavin Newsom.

But it can be divisive – the measure is scorned by a number of Republican politicians, including Florida Governor Ron DeSantis. And in other parts of the world, notably the UK, it could open firms’ doors to a number of potential legal problems.

So are we heading into a new normal where a so-called COVID-19 vaccine passport is not needed just for flights, theatres and stadia but employees’ own workplaces?

US case studies

The aforementioned United Airlines became the first large airline to mandate vaccines for its workforce at the start of August.

Its 67,000 US employees have to get vaccinated against COVIID-19 by no later than October 25 or risk termination.

Outlining one of the strictest vaccine mandates from a US company, United CEO Scott Kirby and president Brett Hart told staff they had “no greater responsibility to you and your colleagues than to ensure your safety when you’re at work, and the facts are crystal clear: everyone is safer when everyone is vaccinated”. 

Other airlines, though, have not followed suit.

The CEOs of Southwest Airlines, American Airlines and Delta Air Lines all say they are not requiring unvaccinated employees to receive the shot, Southwest Airlines CEO Gary Kelly saying in an internal memo obtained by CNN that the airline would “continue to strongly encourage” that workers get vaccinated, but the airline’s stance had not shifted.

Citigroup has told employees returning to offices in the New York area and other big US cities that they will need to be vaccinated in one of the more restrictive moves by a finance company.

The decision also affects workers in Chicago, Philadelphia, Boston and Washington, D.C. as Citigroup expects employees to begin returning to offices at least two days a week from September 13. 

“Given the increased number of employees returning to these buildings, and the delta variant in the US, we are taking this approach to ensure a safe workplace,” Sara Wechter, Citigroup’s head of human resources, said in a LinkedIn post.

And the tech giants are taking a tough line: both Google and Facebook have issued new policies mandating jabs for any employee who wishes to return to the companies’ offices in the US.

According to the Financial Times, Google will introduce the new rules “in the coming weeks”, with the company’s CEO Sundar Pichai adding the policy will apply to its entire 140,000-strong workforce worldwide.

A Facebook statement also declared vaccinations to be essential for all employees seeking to return to its US campuses.

Twitter had already stated that workers coming into its New York and San Francisco offices would need to provide proof of vaccination, although Amazon, which has more than 1.3 million employees globally, is yet to reveal whether it will introduce mandatory vaccinations for its staff.

Apple’s Tim Cook says his firm was still considering whether requiring employee vaccinations is “the right answer”.

But more broadly employers were recognizing that this “is a health and wellbeing economy”, Becky Frankiewicz, ManpowerGroup’s president of North America, told UNLEASH.

“This recovery is based not just on what employers want but on how workers feel and employees expect to be safe and cared for in the workplace whether that’s in the corporate headquarters or in field,” she said.

“The best employers know that demonstrating you can keep people healthy and safe and that you care about their wellbeing is critical to becoming a talent destination.

“They are putting health and safety first – testing regularly, having clear policies that sick workers stay home, reinstalling mask mandates and in some cases  – though mostly in medical, government – requiring proof of vaccination.

“The shift towards vaccination mandates in HQs may be seen as a pilot for broader policies. Much has changed in just 10 days and the next few weeks will tell how this evolves to other industries across our country.”

Becky Frankiewicz, ManpowerGroup, president of North America

Beyond the US

But what about outside of the US?

HR and legal experts in the UK who spoke to UNLEASH were all of the view that firms who insist on their employees getting the vaccine may find themselves on challenging legal grounds.

“Employers who want to implement a policy that requires their employees to be fully vaccinated will need to consider how this sits with existing employment laws,” said Kate Palmer, HR advice and consultancy director at Peninsula.

“Requiring employees to undergo a medical procedure might not be seen as a reasonable instruction so taking action like discipline or dismissal based on a refusal may lead to tribunal claims.”

“Employers need to consider whether the requirement really is necessary or whether the risk from COVID-19 can be managed in other, less intrusive, ways like homeworking or continued social distancing,” added Palmer.

And David Sillitoe, a partner at Robinson Ralph LLP, said that “imposing a mandatory vaccination policy is likely to give rise to a number of issues”.

“In most workplaces, requiring vaccination as a condition of continued employment is unlikely to be regarded as a reasonable instruction by an Employment Tribunal, where alternatives to protect health and safety can be readily implemented,” he said.

“Any dismissals on that basis – where the employee has two years’ service – would be vulnerable to challenge through an unfair dismissal claim.”

Robinson Ralph LLP‘s Sillitoe pointed to the advice of ACAS, the UK’s work dispute arbitration body, which recommends that “employers should support staff in getting the vaccine without making it a requirement, and encourage them to do so by, for example, offering paid time off to attend vaccination appointments”.

“A policy of encouragement rather than compulsion is likely to result in better employer-staff relations,” he added.

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