Mandatory vaccinations in the workplace: constitutionalising the managerial prerogative

The Centner Academy in Miami, a fee paying private school, adopted a policy discouraging its teachers from receiving the Covid-19 vaccine. Teachers who had received the vaccine would not be permitted to interact with students until the scientific risks of vaccination were better understood. This stance reflected the vaccine scepticism of the Academy owners, who described themselves as 'health freedom advocates'. In January 2021, Pimlico Plumbers indicated it was considering a policy whereby its plumbers would be required to be vaccinated in order to work for the company. The company chairperson, Charlie Mullins, stated that he would support an arrangement whereby the employer arranged for the vaccinations to be given on a private basis during working time.

Around the world, employers are developing workplace policies on vaccination for workers. These two opening examples reveal the fundamental matter to be addressed. This basic issue is not whether one is pro- or anti- vaccination in one’s personal worldview. It is to develop a principled framework for regulating what Elizabeth Anderson has described as ‘private government’ in workplaces: private power based on the managerial prerogative. The managerial prerogative is constituted by the private legal powers in the contract to direct the running of the enterprise. The unconstrained managerial prerogative is a form of contractual despotism. Employer policies stipulating mandatory vaccination (or non-vaccination) for workers as a precondition of employment engage the fundamental constitutional rights of workers. This is equally true whether the policy is ‘jabs for jobs’. Or ‘no jabs for jobs’. Or ‘you decide yourself whether to have a jab, regardless of adverse consequences for other workers and service-users'. Fundamental rights to privacy and bodily autonomy, freedom of conscience and religion, the right to work, the right to safe and healthy working conditions, and human dignity, are engaged in each of these scenarios. It is a matter of grave concern where employers are permitted to exercise their coercive powers without principled regulation and constraint, on a matter that is so integral to the life, health, and bodily integrity of workers.

In a constitutional democracy, therefore, it is imperative that ‘private government’ is subject to constitutional constraints. A system of laissez-faire through private contract exposes workers, customers, and service users to the arbitrary whims of powerful private actors. By contrast, a publicly coordinated framework of laws, formulated by the elected government in consultation with representative trade unions, provides a way of ‘constitutionalising’ the managerial prerogative. Within that framework, sectoral social dialogue is the best means to establish if vaccination might indeed be required for certain industries and jobs on the basis of objective criteria.

Any legislation should observe the following principles, which we would be regarded as a ‘workplace constitution’ for managerial prerogative. These principles are based on the following core values: the primacy of human needs, proportionality, voice, health and bodily integrity, and dignity at work:

·       Mandatory vaccination policies in the workplace should be a last resort based upon principles of necessity and proportionality, and should be based in a public statutory framework. The same framework should ensure that immunization is always available to personnel working in sectors regularly exposed to special risks.

·       Necessity and proportionality should be determined by the basic human needs of workers, service users, and customers. In particular, it should be based upon an objective risk assessment ensuring safe and healthy workplaces. This risk assessment should be undertaken by health and safety committees supported by representative trade unions. Where workers and/or service users have particular vulnerabilities to Covid-19 exposure, such as in frontline health care or residential social care, mandatory vaccination is more likely to be justified. As part of the proportionality exercise, such policies should be subject to an 'individualised assessment' to determine whether an unvaccinated employee would pose a direct threat to the health or safety of others in the workplace.

·       Governments should introduce framework legislation that permits sectoral solutions negotiated by representative social partners. Framework legislation should specify general principles to be observed by collectively agreed sectoral solutions. These principles must be based upon international laws on health and safety at work, fundamental rights of workers, and trade union rights.

·       The employer has a duty to provide a healthy and safe work environment. This is the starting-point for assessing the compliance of workplace policies on compulsory vaccination. As any required occupational health and safety measures shall not involve any expenditure for the workers, the employer should bear all costs arising from its own vaccination policy.

·       Where this duty to provide a healthy and safe working environment justifies a mandatory vaccination policy, the principle of solidarity requires the employer to take responsibility for everyone undertaking personal work for the organisation. This is regardless of their specific contractual status, such as whether they are engaged on a self-employed or on a ‘casual’ basis. The duty relates to the workplace environment. Leave for vaccination, and time off for any ill effects associated with vaccination, should be paid at the rate of normal remuneration.

·       Mandatory vaccination policies should not be a substitute for other occupational health and safety measures necessary to control and prevent the spread of biological agents and occupational diseases in the workplace.

·       In considering sanctions for individual refusal of vaccination, the legal framework should draw no normative distinction between dismissal and refusals of employment, since both involve exercises of private power. According equal protection to refusal and termination of employment ensures a levelling up of legal protection for casual and ‘on-demand’ workers.

·       The legislation should specify permissible reasons for refusal of vaccination, including religious and conscientious exemptions. This should make provision for an appeal process where a claim for exemption is refused by the employer.

·       Dismissal should be a last resort for refusing workers. The employer will be subject to a duty to consider alternatives to dismissal, such as relocation or reassignment of duties. Periods of suspension and any form of workplace exclusion should only be considered if there is no other means to provide a ‘reasonable accommodation’ that would eliminate or reduce this risk so the unvaccinated workers do not pose a direct hazard to others.

·       Any compulsory vaccination policy should be subject to ongoing equality monitoring, with a particular focus on disparate impacts on particular racial groups and groups experiencing socio-economic disadvantage. The employer will be subject to a positive duty to remedy any adverse equality impacts caused by a compulsory vaccination policy in the workplace.

·       If a worker becomes ill or suffers a significant adverse reaction to the vaccine, requiring medical treatment and/or time off work, the employer should be liable for any loss of income and provide compensation.

The implications of employers’ vaccination policies for the collective rights and individual freedoms of workers offer a stark reminder of the importance of ‘constitutionalising the managerial prerogative’ and regulating its lawful exercise. It is a sign of our times that the exercise of private powers, itself a projection of private interests and private wealth, can interfere in such a fundamental way with societal and general interests, and with freedoms as fundamental as the right to dignity at work and the very notion of bodily integrity. Paraphrasing Keith Ewing’s assessment of the (often unfulfilled) potential of the human rights discourse in regulating abuses of power at the hands of the state, we suggest that the ‘constitutionalisation of the managerial prerogative’ is an essential testing ground for proving the effectiveness of this discourse in protecting the rights of workers against the abuses perpetrated by private, as well as public, sources of power.