As we ease ourselves out of the global pandemic, it seems the headache for HR departments at national and global firms is only going to continue. National governments are asking themselves important questions about civil liberties, and how strongly these are viewed as part of national cultural identity.
 
How can law firms, particularly those with a global footprint, implement policies such as a mandatory vaccination requirement on an international scale fairly amongst their lawyers and staff? In the UK, it is often the case that trends, policies and practices that are implemented in workplaces in the US make their way over the pond in the months or years that follow. Think offer letters, NDAs, notice pay in instalments, contractual ‘severance’ terms, detailed post-termination restrictions and so on.
 
For some months now, US employers have been following the guidance of the Equal Employment Opportunity Commission (EEOC) in relation to questions about vaccine status, and the Centers for Disease Control and Prevention (CDC) on mask-wearing in the workplace.
 
Now, with the New York City Mayor mandating that from a couple of weeks’ time, employees in NYC must be double vaccinated before they can return to the office things may be getting a little more complicated. Prudent US employers will follow the advice of their national and/or state governing bodies, and as a result mandatory vaccination policies will come in, be in line with US guidelines, and will take account of the current status of the pandemic in the US. That all makes perfect sense. Katten is mulling over such a policy in the US as this article goes to print.
 
It is inevitable that UK employers will have to wrestle with the same questions.
 
These decisions are particularly hard to make for UK law firms which are part of a wider US group, and where there is usually a desire to implement ‘one-size fits all’ global policies. Does a mandatory vaccination policy work in the UK from a cultural perspective? Would it lead to a backlash from a UK workforce? Are the legal risks in the UK outweighed by the desire to have a ‘one firm’ approach?
 
Implementing a mandatory vaccination policy in the UK would go beyond what is required by the current legislation, and government guidance.

Should lawyers be mandating a policy on a medical issue which goes beyond UK medical and Government guidance?
 
To date, most prudent UK employers, like their counterparts in the US, have been following the guidance in response to the pandemic by adopting the government’s recommended Covid-secure measures. However, the law and guidance has not mandated that employees are vaccinated before they return to an office environment.
 
It is not just that the UK and the US rules on what employers are obliged to do are different, nor that the pandemic is in a different ‘wave’ meaning that national concerns are not identical.
 
The terminology used could also have different connotations from a cultural perspective. Two nations separated by the same language and all that. The term being used to describe folk who have not received two vaccinations is ‘the unvaccinated’. This works in the US, but I feel it does not translate particularly well to the UK.
 
At Katten, for example, we categorise our employees as either ‘lawyers’ or ‘business professionals’. Other law firms use the term ‘non-fee earners’. Business professionals (who can often account for 40-50% of the law firm headcount) perform a critical function and generate revenue by freeing lawyers to practise law and can often feel marginalised by the terminology used to describe them. No-one really aspires to be a ‘non’ or an ‘un’ anything, so ‘unvaccinated’ is an interesting choice of term to a UK audience, with its overtones of secondary class and perhaps being on the receiving end of less favourable rights.
 
There are also legal concerns in the UK associated with adopting a mandatory vaccination policy. They apply whether the policy is linked to continued employment, a job offer, or a return to the place of work.
 
In (very) brief detail, the main legal issues are: 

- the risk of discrimination claims, for example on the grounds of disability, pregnancy, religion or belief, age etc. if a vaccination policy causes a person with such characteristics a disadvantage, and the policy cannot be objectively justified (in the eyes of the law), and

- the GDPR requirement that an employer must have a clear and necessary reason in order to request and keep vaccination records.

Employers frequently implement policies which could potentially be interpreted as unlawful. They are well used to balancing the risk of claims, fines, negative PR or other sanctions against what they are trying to achieve by such a policy.
 
On occasions, they may decide the end justifies the means. When it comes to a policy that curtails a person’s ability to choose and goes further than current government advice to employers, though, that calculation may shift. Of course, ‘current’ advice can quickly change, especially in the context of a once in a generation pandemic that is forcing governments to constantly react to unexpected developments.
 
While the UK government is not currently suggesting that those who have not received a vaccine should be treated any differently in the workplace from those who have, it is possible that it could do so in the future, particularly if it is influenced by policies in other countries like the US.
 
But should it be so influenced? Will UK employees view their rights differently to those in the US? And might there be a wave of opposition and even protests if compulsory vaccinations are introduced in the workplace.
 
Certainly, in France, where ‘liberté’ is one-third of the national motto, there have already been public protests against arguably lesser restrictions on civil liberties. Cultural identity is therefore a key question not just for the UK government when setting policies and issuing guidance on Covid-19 measures, but also for employers.
 
The UK offices of international firms considering a global policy should therefore tread carefully. After all, the extent to which an office is sensitive to local culture speaks volumes about the firm’s values. At Katten in London, we are not intending to pursue a mandatory vaccination policy regardless of the position in the US, and regardless of a ‘one firm’ approach to a number of other policies which bind us together, unless or until such time as the government guidance changes. It is this ability to embrace national differences which enhances the inclusive culture of a global firm.

Christopher Hitchins is an employment partner and London office managing partner at Katten Muchin Rosenman