Sports in the news - what do the employment lawyers think this January?

The truth about medical exemptions: Djokovic’s unforced error

If you have paid attention to the news these past few weeks, then you have almost certainly seen the media storm surrounding Djokovic’s arrival in Victoria to compete in the Australian Open.

The World No.1 publicly declared in 2020 that he would not be compelled to receive the Covid-19 vaccine but insisted he would still compete internationally in tennis’ biggest competitions. Upon his arrival in Australia, a country that has had a series of strict lockdowns to prevent the spread of the virus, Djokovic produced a document declaring himself as “medically exempt”. He did so in the hope that he would not need to undergo the mandatory quarantine period which applies to unvaccinated persons entering Australia.

In line with the Australian immunisation guidelines, Djokovic claimed that he qualified for a medical exemption because he had tested positive for Covid-19 in the last 6 months. He had actually contracted the virus twice in this 6-month period. Ultimately, he was denied entry and, after a series of appeals and a wave of public outcry, eventually deported.

Unsurprisingly, the whole story sparked yet another heated discussion on vaccination status and travel restrictions, but this time there were a number of new questions which are less frequently spoken about, specifically surrounding medical exemptions. Looking at this from a UK employment law perspective, the questions employers need to ask are: what are medical exemptions, when can they be relied upon by employees, and what do employees need to do to qualify for the exemptions?

Rules on vaccinations

As things stand, only those working in care homes in England are under a mandate to be vaccinated. From 1 April 2022, all NHS staff and private sector health workers who have direct contact with patients will also be required to be vaccinated. Otherwise, there is no legal requirement to be vaccinated. This leaves employers with few options to boost vaccine uptake: they may choose to encourage their employees to get the vaccine or facilitate the process by providing time off for vaccine appointments.

This means that, for some employers, a significant proportion of their employees remain unvaccinated, which creates several challenges. Beyond the obvious risk of illness, unvaccinated employees are required to self-isolate if they come into close contact with a person who has tested positive for Covid-19 and are also required to undergo a period of mandatory quarantine after travelling to the UK from abroad. This has resulted in significant increases in staff absences over the winter months and can cause serious disruption to business continuity. Because of this, it is important to consider where medical exemptions might be relied upon.

Medical exemption

The rules surrounding medical exemptions vary from country to country. In the UK the assessment for medical exemptions must be made by a doctor, clinician or midwife and they must determine that the employee falls into one of the following limited categories:

• They are receiving end of life care where vaccinations are no longer in their best interest;
• They are someone with learning disabilities, autism or a combination of impairments which would mean vaccination and testing would cause them serious distress, and who cannot be vaccinated through reasonable adjustments;
• They are someone with severe allergies to all currently available vaccines; or
• They are someone who has had a serious adverse reaction to the first dose.

In addition to the above, temporary exemptions can be given to those who are pregnant, or they can self-certify that they are exempt for a brief period if they work or volunteer in a care home.

If an employee believes they are eligible for an exemption they will need to contact the NHS Covid pass service and request that they be sent an application form so they can apply for a medical exemption. This form will then be posted to them to complete and then send back, ready for assessment.

It will come as no surprise that the assessment to determine who meets the qualifications on this list will be a stringent one. Djokovic himself, although in another country, was compliant with the rules of the medical exemption according to the Australian immunisation guidelines, as he was in possession of not 1 but 2 positive PCR tests from the last 6 months. This should have been enough to secure his entry into the country, but he still fell foul of judicial discretion and was subsequently deported.

This is a suitable reminder that not only is the assessment of who is considered medically exempt different within each jurisdiction, but also that the decision itself is likely to be a politicised one. The vaccination rollout has been a top priority for the government from its inception and battling Covid has been the defining health crisis of our time. Because of this, declarations of medical exemptions, though a possibility for employees, will ultimately remain a rarity in practice.

Employers will only be able to consider whether medical exemptions can be relied upon in very limited scenarios, and only for an employee with the right personal circumstances. A fully vaccinated work force will still remain the employer’s grand-slam.