Will it be “No Jab, No Job”?

Insight Financial Associates

At the end of August the CEO of Australian airline Qantas said that the pandemic had cost “billions” in lost revenue. No shock there – but on the same day another airline did come out with a surprising announcement. 

America’s third-largest airline, Delta, said that it would impose a $200 (£145) monthly surcharge on employees not vaccinated against Covid-19. In addition, it would only pay sick pay for Covid to people who had been double-jabbed, but still became infected.

In a memo to staff CEO Ed Bastian said that the average hospital stay for Covid-19 now cost the company $50,000 (£36,300) which was “untenable.” He added, “this surcharge will be necessary to address the financial risk the decision not to vaccinate is creating for the company.”

There have been plenty of stories of companies insisting that staff are fully vaccinated before they return to the office, and plenty of rumours of pay-cuts for staff who opt to work from home. Delta, though, seems to be the first company to take direct financial action against staff who decide – for whatever reason – not to get vaccinated. Could other companies follow suit? And could it quickly become a case of ‘no jab, no job?’

As long ago as February, Prime Minister Boris Johnson was stating that vaccinations would not be compulsory. “That’s not the way we do things in this country,” he said. This was followed by vaccines minister Nadhim Zahawi ruling out vaccine passports, saying they would be “discriminatory.”

But while that was – and remains – the official position, could employers make vaccination compulsory in all but name? Around the time Boris Johnson was saying jabs wouldn’t be compulsory, Pimlico Plumbers, from London, had already set aside money to vaccinate its entire workforce and had stated that vaccination would be a condition of employment for new starters. As we’ve mentioned above, every week now seems to bring another story of an employer insisting on staff being vaccinated.

It is easy to see the whole subject becoming a legal minefield. Nearly 18 months on from the start of the pandemic many employers – and their employees – will, inevitably, be attracted by the idea of a fully vaccinated office or factory.

Can employers do that? Can they draw a line between new starters and someone who, say, joined just before Covid? It is certain to be challenged in the courts. Those opposed to the vaccine – on medical or ethical grounds – will make a very simple argument. ‘It wasn’t a condition of my employment that I had the MMR jab. How can you therefore insist I have the Covid jab?’ There are certain to be claims for unfair dismissal.

Will an employer be seen as discriminating against someone who opts not to have the vaccination? Will staff be able to refuse to work with someone who hasn’t been vaccinated? Will companies that previously had, say, the HR Team and the Accounts Team suddenly have the Vaccinated Team and the Non-Vaccinated Team?

One thing is certain – the employment lawyers are not going to be short of work. And with the virus constantly changing and the need for booster jabs becoming apparent, this is not a subject that will be quickly resolved.