Biological agents (pathogenic and micro-organisms) within the workplace pose a risk to the health of workers through infection. The risk depends on the individual hazard, how and where the hazard is present and transmitted to humans, the infectious dose, the people at risk (including vulnerable groups), the likelihood of exposure and the consequent disease. These risk factors will be identified and evaluated as part of the risk assessment and prevented and controlled as an outcome of the risk assessment.
IOSH advocates that employers follow a prevention-first approach and implement control strategies that enable safe and healthy workplaces and activities. Depending on the outcome of the risk assessment, the collective control measures may include the provision of vaccinations, where they are readily available. Employers must inform employees about the hazards, risks and control measures and ensure any medical concerns are advised on by competent people.
When considering the risks of Covid-19 in the workplace, we advocate that this process is followed. It should identify the controls to prevent or reduce identified risks, one of which will be the administration of a vaccine. Any employee, however, has the right to refuse to have a vaccine. If an employee does refuse the vaccine, the risk assessment must be reviewed to determine whether further control measures are required.
IOSH recommends that employers provide information about the vaccination (the process and the benefits) based on the Government advice at the time. However, as immunisation is only one form of control, the identified collective infection prevention and controls within the workplace must still be in place and monitored and employees kept informed of the measures in place for their occupational safety and health (including vaccination).
Communicable diseases such as Covid-19 pose a risk to everyone, wherever they are. This includes in workplaces, where the pathogens can quickly spread among employees.
Vaccination programmes for employees is not a new subject. In some professions and sectors, employers have been managing the risks of such diseases for many years. These include vaccines for Hepatitis B for some health workers (due to the risk of blood-borne viruses), annual influenza vaccinations for health and social care workers, or typhoid injections for business travellers.
Vaccines have, however, become a hot topic in the Covid-19 response. What is clear is that immunisation is the last line of defence and should not be the sole protection. Therefore, other control measures are still essential and required, particularly as vaccination efficacy may not be 100 per cent or even effective in some people.
Under the Health & Safety at Work (HSW) Act 1974 and the Control of Substances Hazardous to Health (COSHH) Regulations 2002, employers in the UK have a strict liability to protect the health of their employees and others who may be affected by their undertaking. This includes employees who may reasonably be exposed to contact with biological pathogens as part of their daily work. Under the law of tort, the employer also has a duty of care, and may be subject to litigation if an employee can show that a duty of care was owed, causation, a breach of that duty and subsequent loss or suffering.
The following are further details about the legal position, including references to relevant legislation.
COSHH Regulations 2002 
- ‘The general duties of COSHH apply to incidental exposure to, and deliberate work with, biological agents. However, COSHH does not cover a situation where, for example, one employee catches a respiratory infection from another. This is because regulation 2(2) specifies that COSHH only applies in those circumstances where risks of exposure are work related, and not those where they have no direct connection with the work being done’.
- ‘If the risk assessment concludes there is a risk of exposure to biological agents for which effective vaccines are readily available, these should be offered. It is recommended that employers keep a vaccination record. The HSW Act requires that the employer provides protective measures such as immunisation to workers free of charge’.
- ‘Employees may not wish to take up the offer of immunisation, or they may not respond to a vaccine and will, therefore, not be immune. If so, employers should consider the effectiveness of the other controls and consider whether any additional controls should be implemented to allow them to work safely’.
Management of Health & Safety at Work Regulations 1999
In the UK, under these regulations, it is the duty of the employer to assess the risk to employees and third parties, and to put in place appropriate controls to mitigate that risk. Vaccination can be a significant control that safeguards the recipient from illness and even death. It is also a requirement to inform employees of the risk, the consequences of the hazard and what steps to take to stay safe, including vaccination.
Other countries have legal systems that have a similar approach or appropriate standards to govern vaccination in the workplace.
We are currently researching the changing situation and wider impacts this has, and continues to have, globally. Please refer to your own countries guidance. For example within the UK please continue to be familiar with, monitor, and follow the Government guidelines and guidelines within your own region/local authority. Continue to undertake, implement, monitor, review and communicate risk assessments within your workplace.
Free of charge
A vaccination, where identified through the risk assessment process, must be arranged and provided to the employee free of charge by the employer. The law assumes that the employee would not be exposed to the risk had they not been tasked by their employer.
An adult must consent to their own treatment. This must be given voluntarily and freely. According to The Green Book, a document developed to provide information on immunisation for public health professionals, ‘Under English law, no one is able to give consent on behalf of an adult unable to give consent for examination or treatment him or herself’.
Equality Act 2010
There are nine protected characteristics in the Equality Act 2010, but hesitancy around having a vaccination is not one of them. But if the reason for refusal is related to a disability and a worker can provide medical evidence, it is conceivable that the employer could be discriminating if they state that all employees must have the vaccination.
Employees who have less than two years’ service cannot claim unfair dismissal. If they have no grounds for discrimination, then they have no recourse if they are dismissed. Employees who have over two years’ service can claim unfair dismissal. It is therefore important that a compelling case is made, probably with the aid of risk assessment information and findings.
All employees must give their consent to receiving a vaccination. An employee does have the right to refuse a vaccination. Usually, the employee would be asked to sign a waiver statement that records that they had received and understood the explanation of why a vaccination is recommended, and the reasons why they refused. If they later change their mind, then the employer must still pay for the vaccination. It is possible, however, to make agreement to receive vaccination a requirement of contract, declining those applicants who do not consent. This would certainly depend on the terms of employment. With regard to health and safety in the workplace, immunisation for those at risk of biological agents are ‘recommended’ to have the vaccination.
There are some people who have opposed vaccinations for a variety of reasons. Such opposition can pose a challenge to protecting the entire workforce. While individuals cannot personally be forced to have a vaccine, if they attempt to persuade others to refuse it, thereby placing them at risk, an employer may seek to take disciplinary action.
In the UK, the Crown non-departmental body that focuses on industrial relations – the Advisory Conciliation and Arbitration Service (Acas) – gives further advice on its website here. In other countries, disciplinary processes may be different and worth reviewing for your location.
Business benefits will include preserving and increasing productivity with healthy workers. Being seen as a caring organisation can also boost morale among employees. Decreased sickness absence rates help to reduce costs. It will help prevent the spread of infection among vulnerable customers/ service users/clients.
IOSH Covid-19 policy position
Check out our Covid-19 policy position.
- Covid-19 vaccination is a personal choice and needs to be voluntary in nature. No worker should suffer any form of discipline or discrimination for refusing to be vaccinated. Continued employment must not be made dependent on proof of vaccination. At the same time, getting involved in these conversations could be irrelevant as the situation in most countries is that vaccines are initially in relatively short supply.
- The evidence is limited regarding the extent to which the Covid-19 vaccination programme prevents transmission. Therefore, the safety, effectiveness, reduction evidence in infectivity and duration of immunity for the different vaccines will evolve as vaccination programmes roll out. It is possible that those who have been vaccinated may still carry the virus without showing symptoms and could still be able to spread it to others. The World Health Organization has also recognised that it's unclear for how long immunity will last once vaccinated.
- Corporate Covid-19 vaccine policies linked to OSH practices could contribute to increasing the burden of policies in the workplace – e.g perceptions of health and safety burdens.
- Vaccination of the employee may only be mandatory in exceptional cases. Discussions are still ongoing in many areas around this, with reports indicating some care homes may make it a condition of employment.
- A large number of nurses, doctors, physicians, paramedics and other healthcare-related professionals are already vaccinated, or in the process of getting a coronavirus vaccine.
- There will always be staff who object to vaccines on medical or religious grounds, or because they are pregnant. On the latter point, current advice is to not get vaccinated unless the pregnant individual is in the higher risk group.
- Research and development in the vaccine continues, so any new information and guidance must be utilised and followed when considering application within workplaces.
 Control of Substance Hazardous to Health (sixth edition), COSHH Regulations 2002, ACoP and guidance, L5.
 The Green Book, Chapter 2, Consent.
Date published: 04 March 2021