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UK law firms are facing a quandary over Covid-19 vaccine requirements for staff after a growing number of US groups have demanded workers are fully vaccinated before they return to the office.
With scores of workers set to return to the office over the coming weeks, the moves by the US firms have increased the dilemma for their UK counterparts.
Unlike in the US, where legal guidance has paved the way for employers to require vaccines, UK firms must balance the risk of discrimination with the threat of health implications if they fail to insist staff are double jabbed.
A recent US Department of Justice opinion determined that federal law did not prevent employers from setting a vaccine requirement.
But in the UK, the Equality Act makes discrimination unlawful at work, although indirect discrimination can potentially be justified to achieve a legitimate aim.
US group Morrison & Foerster this month became the first leading law firm to require its London-based staff to be fully vaccinated for a return to the office when it reopens its City base on September 13.
The firm is also asking staff in the US to make sure they are vaccinated or work remotely as it opens up its American base in October.
Some firms in the US have gone as far as to warn that identity cards will be deactivated if any worker has not been fully vaccinated.
Davis Polk, for example, plans to deactivate employees’ identity cards if they have not completed proof of vaccination by midnight on September 12, according to news first reported by Law.com.
Richard Fox, an employment partner at law firm Kingsley Napley, said: “Cautious employment lawyers would always say it’s dangerous to introduce a mandatory vaccine policy [in the UK] because you could get people with discrimination claims and you could be vulnerable, so generally the word we use with our clients is encourage, don’t compel.”
The London managing partner of one US law firm said he had received legal advice that it would be “unlawful to insist on people being vaccinated as a condition of a return to work”.
But Fox said the spread of the Delta coronavirus variant meant the “mood music is changing”, and some UK employers were starting to consider whether the infection rate could act as a justification.
“Some clients want to mandate people back into work because they are taking the lead from what goes on in the States . . . We haven’t yet really tackled the compulsory vaccination issue [in the UK] as it’s very new, but I think when August is behind us that will start happening,” he said.
Some UK politicians, including Grant Shapps and Dominic Raab, have also backed the idea of companies making double jabs for staff mandatory for those that come back to the office.
But so far, few groups have taken the step in the UK, apart from Pimlico Plumbers, which operates a “no jab, no job” policy.
UK-based law firms including Linklaters and Slaughter and May will not require staff to be vaccinated when they return to the office, according to individuals at the firms.
However, Linklaters has asked staff to keep working remotely if they have been in contact with an infected person until they receive a negative PCR Covid test.
Fellow “magic circle” law firm Clifford Chance is also steering clear of vaccine requirements when it brings staff back to the office in September on a hybrid basis of 50 per cent working hours — a sharp difference from its US policy where the firm requires proof of vaccination to return.
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