When Must Care Workers Be Vaccinated By
The Government has provided a 16-week grace period for care workers to get vaccinated. Please see below for the crucial dates that care workers should be aware of:
- 22 July: the grace period began.
- 16 September: the last date for care workers to get their first dose to make sure they are fully vaccinated by the time regulations come into force.
- 11 November: the regulations come into force. Care workers need to be fully vaccinated by this date.
What Does This Mean For Employees That Are Extremely Clinically Vulnerable
People at high risk from Coronavirus are no longer advised to stay at home and shield.
There are a range of options available to employers where high-risk employees are not comfortable with going to work. Whilst the furlough scheme has now concluded, options include suspending on full pay, allowing employees to take annual or unpaid leave and sick leave. However, as time goes on these options may be less commercially viable, in particular when businesses return to their normal workload.
Employers should also be aware that employees have statutory rights meaning that they have protection from any detriment or dismissal when they have decided not to return to work, because there are circumstances of danger where the employee reasonably believes this danger is serious or imminent. The belief must be genuine and reasonable therefore, once the vaccine has been fully introduced, the belief will likely become less reasonable.
Employers should consult with their employees to understand their concerns and discuss how risks will be managed. Employers should also carry out a proper risk assessment and take the appropriate steps to mitigate these risks. For further information, please see our blog Changes to shielding the implications for employers.
Coronavirus: The Covid Vaccine And Your Legal Rights
The Government recently announced that children aged 12 to 15 in England will be offered a first dose of a COVID-19 vaccine. Prior to that, the Pfizer-BioNTech Covid-19 vaccine was offered to all 16 and 17 year olds along with 12-15 year olds who were deemed high risk. There is no vaccine currently approved for under-12s in the UK.
The UK regulator has approved the use of the Pfizer-BioNTech Covid-19 vaccine for children aged 12-15, stating that the benefits outweigh any risks and that the vaccine is safe and effective.
Whilst 16-17 year olds are able to decide for themselves whether to have the vaccine, the decision to vaccinate children under the age of 16 is down to parents – or those who hold parental responsibility.
In law, if you have parental responsibility for a child, you are deemed to have all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property.
Given the speed at which vaccines for Covid-19 have been approved and developed, it is perhaps understandable that this could create doubts in the minds of parents who might otherwise be comfortable with the idea of vaccinating their child.
My ex-partner and I disagree over vaccinating my child for Covid-19. What would the courts say?
At present, there is no legal requirement in England and Wales for a child to be vaccinated.
Is court the only option if my ex-partner and I disagree over vaccinating my child for Covid-19?
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The Federal Government Probably Cannot Require Every American To Become Vaccinated But It Could Make Remaining Unvaccinated Very Expensive
To be brief: Neither Congress nor President Biden can likely force citizens to be vaccinated, although the federal government can use financial carrots and sticks to encourage vaccination.
To be longer : In NFIB v. Sebelius , the Courts first major Obamacare case, the Supreme Court imposed a novel new limit on Congresss power. Congress may not use its broad power to regulate the national economy in order to regulate inactivity. If someone does not want to take a particular action, the federal governments ability to require them to take that action is limited.
NFIBs holding on this point, in the words of one very conservative federal judge, had no support in either the text of the Constitution or Supreme Court precedent, but lower courts are required to follow the Supreme Courts decisions even if they are arbitrary or lawless. And NFIB has pretty clear implications for a federal vaccine mandate.
Indeed, this very issue came up during oral arguments in NFIB. Justice Stephen Breyer posed a hypothetical to Michael Carvin, one of two lawyers arguing that the Affordable Care Act is unconstitutional, about what might happen if the Court adopted his proposed legal standard. If it turned out there was some terrible epidemic sweeping the United States, he said, would the federal government have the power to get people inoculated?
Carvins response: No, they couldnt do it.
Assessing The Risk Of Covid
If their work is not subject to a mandate, a business can still require that certain work must only be done by vaccinated workers, based on the risk of contracting and transmitting COVID-19 to others. Businesses cannot require any individual person to be vaccinated.
To decide that work needs vaccination for health and safety reasons, businesses must first assess their COVID-19 exposure risk. This applies to work done by all workers, whether employees or independent contractors. Businesses must involve workers, unions and other representatives in the risk assessment process. Businesses should consider whether other public health measures can minimise the risk of exposure and transmission of COVID-19.
If certain work can only be done by vaccinated workers, businesses should set a reasonable timeframe for workers to decide if they will be vaccinated. If an employee cannot work during this time, special paid leave should be considered, especially in the short term while employers and employees discuss what happens next.
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Current Employment Law Continues To Apply
If employees are doing work that can only be done by a vaccinated worker, but are not vaccinated, employers will need to address any practical barriers to accessing vaccination . Employers should do this before considering any of the options below.
Employers should take care to be fair and reasonable in their response, and work through processes with employees in good faith before deciding on any outcome.
Can The Federal Government Require All Americans To Get Vaccinated For Covid
No. The FDA can authorize vaccines for emergency use during the duration of a public health emergency and it can give full approval to vaccines. The FDA does not mandate vaccination, according to the CDCs guidelines on workplace vaccination. However, whether a state, local government, or employer, for example, may require or mandate Covid-19 vaccination is a matter of state or other applicable law.
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The Federal Government Requires Companies To Mandate The Vaccine
Even before Biden’s COVID-19 vaccine mandate, US employers could require employees to be vaccinated during pandemics under federal law.
The Biden administration issued new requirements for all companies with 100 or more employees to ensure they are either fully vaccinated or produce negative test results at least once a week. The rule could give employers the option of making unvaccinated employees pay for the weekly testing, Bloomberg Law reported.
Because it’s federally mandated, the Department of Labor will require employers to give workers paid time off to get vaccinated. This includes time to get the shot and sick time to recover from any side effects.
Refusals Could Be Valid
Though a mandatory vaccination policy wont fly, employers will strongly encourage their employees to get the shot for their safety and the safety of others, said Lior Samfiru, the founder of the labour and employment law practice at Samfiru Tumarkin LLP.
Employers may even offer incentives, he said, though its unlikely it would be a monetary one.
The incentive has to do with work conditions. It cant be looked at as a punishment to those that have not been vaccinated, he said.
Incentives that differentiate employees or appear to treat those who have been vaccinated better than those who havent could be considered a human rights violation, said Samfiru.
Do you want to be comfortable at work and not have to wear a mask for 10 hours? Then get vaccinated. Thats the type of incentive.
But some employees may refuse, Monkhouse added, and some of the reasons for refusal will be legally valid.
Read more: Two shots. A waiting period. Why the coronavirus vaccine wont be a quick fix
Anti-discrimination laws would enable eligible employees to forgo getting a COVID-19 vaccine or be considered exempt from a company-wide mandate. By law, Canadian workers could request an exemption for medical, religious and philosophical reasons. The same exemptions apply at public schools in some provinces, like Ontario and New Brunswick, where children up to a certain age are required to be immunized against a number of infectious diseases to attend.
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Can I Be Punished For Refusing A Vaccine
As mentioned above, at present, no mandatory vaccine schemes exist in the UK. This means that currently, no one can be given a penalty such as a fine or a criminal sentence for refusing to take a vaccine.
However, while the new regulations dont technically make vaccines mandatory, they do create strong pressure for all care workers to be fully vaccinated, by making it very difficult for them to work without this. From a legal standpoint, it seems likely that the courts would consider this pressure to be lawful under human rights law.
In April 2021, the European Court of Human Rights confirmed in the case of Vavika and Others v. The Czech Republic that punishment for non-compliance with a mandatory vaccination scheme were lawful under Article 8 of the European Convention on Human Rights . In order to comply with Article 8, these penalties had to be considered proportionate to protect public health and had to be introduced in law.
If the care homes regulations were challenged in UK courts, judges would have to take into account the decision of the European Court in the Vavika case . The UK court would need to consider whether the care homes scheme was proportionate to the aim of protecting public health.
What If You Dont Comply With Vaccine Requirements
If you decline to get the COVID-19 vaccination for reasons other than those related to religious or disability purposes, your company may choose to no longer employ you. Your specific situation will depend on your companys guidelines and requirements.
Some companies will want to ensure your status. They may require you to show proof of COVID-19 vaccination or have employees complete weekly submissions of a COVID-19 test.
Guidelines change and update constantly. Its important to check your company or schools requirements to ensure you stay prepared.
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Can My Employer Or University Require Vaccination Even Though The Vaccine Is Not Fully Approved By The Fda
Yes, with some exceptions. Companies like are mandating vaccines for certain employees, while municipal governments like New York City and Los Angeles are adopting soft vaccination mandates. If there is a unionized workforce, it is likely that the requirement would need to be negotiated with the union. Additionally, More than 630 colleges and universities are requiring at least some students and employees to be vaccinated against, according to a tracker from The Chronicle of Higher Education.
The three Covid-19 vaccines authorized for emergency use in the United StatesBioNTech/Pfizer, Moderna and Johnson & Johnsonhave undergone thorough scientific evaluation in order to meet safety, effectiveness, and manufacturing quality standards, according to a statement from the FDA. Pfizer/BioNTech and Moderna have filed applications to receive full approval, which are currently being evaluated.
There is a provision in the emergency use authorization regulation that says the Department of Health and Human Services is required to inform people of the option to accept or refuse these products, says Reiss. And while it seemed like the CDC and FDA initially interpreted this clause as a prohibition on mandates, on closer inspection, many legal scholars are saying that’s not the right interpretation, she says. The clause does not speak to anyone except the Secretary of Health.
More businesses are requiring proof of Covid vaccination for entry.
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Can Workplaces And Businesses Require Vaccines
There is a strong case for requiring particular workers to be subject to mandatory vaccinations. However, many other workplaces in Australia may also require COVID-19 vaccination certificates under Occupational Health and Safety policies.
The legal dynamics here are different to a government-mandated vaccination if it is required as a condition of employment .
There is precedent for this: some states and territories have adopted a mandatory vaccination policy for staff working in close contact with patients or infectious materials. In the ACT, for example, all ACT Health staff are subject to an occupational assessment, screening and vaccination procedure, which requires them to be immunised against diseases including influenza, diphtheria and hepatitis B.
Similarly, businesses could require an immunisation card to be presented as a condition of entry. This could include airlines requiring proof of vaccination as evidence of fitness to fly.
There are more complex legal questions when it comes to requiring vaccines for students to be admitted to schools or universities.
This was hotly debated in those states that introduced a no jab, no play mandatory vaccination regime for access to child care services, as well as the federal no jab, no pay policy.
Read more:Immunity passports could help end lockdown, but risk class divides and intentional infections
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Can An Employer Dismiss An Employee Who Refuses To Take The Vaccination
An employer may dismiss an employee who refuses to comply with a reasonable management request. Therefore, if it is considered that taking the vaccine is a reasonable management request, an employee may be able to be dismissed for refusing to comply.
This will require careful analysis on a case by case basis and will depend on the specific circumstances. If an employee is refusing to take a vaccination and is also refusing to come into the workplace, an employer should firstly consider alternatives such as change of role, regular testing or permanently working from home. Where contact with customers, clients or other employees is necessary, steps may need to be taken when employees are refusing to come into work.
However, if an employee is refusing to take the vaccine for legitimate reasons and is still happy to come into work, an employer would be ill-advised to dismiss them. An employer should thoroughly consider an individuals reasons for refusing to take the vaccine before making any decisions.
In the current situation, where the Government has only extended compulsory vaccinations to those working within care homes, employers outside of the care sector are likely to find it difficult to justify dismissal for employees who are ready and willing to work, but who have chosen not to have the vaccine.
How Likely Is Your Employer To Require A Covid
If your company employs 100 or more workers, they will be legally required to mandate the COVID-19 vaccine or subject you to regular testing by Jan. 4, assuming the OSHA suspension is lifted. Smaller companies can also require workers to get vaccinated, although it’s not considered a federal mandate. Here’s more about who’s required to get vaccinated against the coronavirus.
For more information, here’s the latest on who’s eligible for the Moderna COVID-19 booster shot and the Pfizer booster vaccine right now.
The information contained in this article is for educational and informational purposes only and is not intended as health or medical advice. Always consult a physician or other qualified health provider regarding any questions you may have about a medical condition or health objectives.
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The Government Is Turning Employers Who Are Not Paid By Nor Work For The Government Into An Army Of Vaccine Enforcers
Im vaccinated, and Im grateful to be.
But that doesnt mean I think the federal government should bully employees in medium and large businesses into getting vaccinated as well.
The Biden administrations mandate, with a deadline of Jan. 4, requires all businesses employing 100 or more people to have every employee be either fully vaccinated for COVID-19 or to take weekly COVID-19 tests. This will affect an estimated 84 million Americans.
Learn About Your Human Rights In Relation To Covid
Even in times of crisis, people have human rights that safeguard their dignity. Even in times of emergency, human rights place binding obligations upon the Government to abide by commitments they have made. The Government has obligations to limit the spread of Covid-19, but restrictions must be necessary, proportionate and respectful of human dignity. The Government has Te Tiriti o Waitangi and human rights obligations to protect peoples economic and social rights, as well as their civil and political rights.
This page addresses some frequently asked questions about Covid19 and your rights. It also points to guidance issued by government agencies about your rights under privacy, employment and health and safety legislation.
As the nature of Covid-19 continues to evolve, so too will the Government response. Many of these issues will be considered by the courts now and in the future. Therefore this guidance may change.
The following information is only intended as a guide and is not legal advice.
Resources
The Commission has released a series of briefings on the human rights and Tiriti implications of the Governments new Covid-19 Protection Framework to aid the public and policy makers. The Briefings are available here:
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