By Stuart Lawrenson
Will the Coronavirus vaccine solve the many challenges faced by employers or does it just inject further issues for employers to deal with?
To be vaccinated or not to be vaccinated? That is the question …. being discussed in homes and in workplaces up and down the country. With the start of the roll out of the COVID-19 vaccine the idea that some sense of normality could return to the workplace in the near future became a more attainable vision.
Employers hardest hit by the pandemic, such as those in the health and care sector, had to digest the news of a vaccine and prepare for roll out in a matter of days. The Department of Health and Social Care asked care home providers to begin booking appointments for staff in to be vaccinated . However, early reports in the press indicated that even in the care sector there was a large percentage of employees who were reluctant to agree to be vaccinated.
There are numerous employment law issues facing employers who are eagerly awaiting the vaccination of their employees.
1. Can you require your employees to be vaccinated?
Employers who forcibly vaccinate their workforce could be committing criminal offences therefore mandatory vaccination programmes are not appropriate. However, what if the employer considered the vaccination of its workforce to be a reasonable management instruction? In some sectors where COVID-19 presents an increased risk of outbreaks, morbidity and mortality it is conceivable that employers may be able to argue that asking employees to take the vaccine is a reasonable management request; therefore, giving rise to disciplinary action on refusal.
However, such an instruction carries a risk to reputation and could jeopardize relationships with the workforce. It is doubtful that an employer would want to be labelled as one of the first to dismiss an employee on the grounds of a refusal to be vaccinated. Any such behaviour could lead to a breakdown in the employer/employee relationship and could ultimately lead to claims of a breach of trust and confidence/constructive dismissal.
2. Could an employer’s mandatory vaccination programme risk discrimination claims?
Whilst much of the early debate has centred around individual choice, it must not be forgotten that requiring employees to be vaccinated could give rise to potential discrimination claims. Employees may have medical conditions that prevent them being vaccinated and others, such as pregnant employees/anyone trying to conceive and anyone with significant allergies are also advised against having the vaccine.
For others, a refusal might be based on the employee’s own religion and/or beliefs. All such matters would be considered to determine whether a refusal was ultimately reasonable from both an unfair dismissal and a discrimination perspective.
3. It’s not just employees an employer needs to be worried about
It is not of course just employees who can spread coronavirus. If an employer allows contractors, visitors and other third parties on site this is likely to weaken an employer’s argument that all employees have to be vaccinated. As part of the communication strategy outlined below, employers should seek to understand the reasoning behind any refusal to be vaccinated and explore alternatives where possible.
4. How best to encourage a high percentage of employees to agree to being vaccinated?
It is expected that most employers will not look to impose a mandatory vaccination requirement on their employees, particularly as the government has made it clear there are no plans for the vaccinations to be mandatory.
As an alternative to imposing a mandatory vaccination programme, employers are advised to adopt a clear communication strategy so that employees are well informed of the impact of COVID 19 on the business and are given all necessary information to make their decision. Where employers are under time pressure to confirm the number of vaccinations required, fast track discussions should be had with all employees. Such discussions should aim to secure a high percentage of consent whilst the opportunity to obtain vaccinations is still open to their business. This is particularly relevant at this early stage of the vaccination rollout, as it may be that employers only receive one opportunity to access the vaccination.
5. Can those workers who will not, or are unable to, be vaccinated be prevented from attending the workplace?
Understandably, employers will be concerned about the risk of COVID-19 returning to the workplace and continuing to spread amongst those who have not received the vaccination. Careful consideration will need to be given as to whether it is appropriate to stop those who have not been vaccinated from entering the workplace. Where taking the vaccine is seen to be a reasonable management instruction, it is possible that restricting access would be considered a reasonable precaution.
6. Can an employer make an offer of employment conditional upon an employee proving that they have been vaccinated?
Potentially yes. Whist the risks of discrimination claims (as referred to above) will remain, an employer will not face the possibility of claims of unfair dismissal from prospective employees.
New starters may not have received a vaccine unless they fall into a group able to receive early vaccinations. Employers will also need to be aware that setting such a condition will almost inevitably lead to delays in the recruitment process.
7. Vaccinations and GDPR considerations
In order to contain and control COVID 19 within the workplace, many employers will be keen to record who has and has not received the vaccination. From a GDPR and privacy perspective, this creates its own challenges as the mere fact that someone has or has not received a vaccine will constitute special category data concerning health.
Employers will therefore need to ensure that any records are kept in accordance with GDPR and privacy laws. Employee Privacy Policies should be reviewed and updated accordingly.
8. The importance of maintaining current practices
Whilst it is hoped there is now light at the end of the tunnel, it will be some time before everyone will be vaccinated.Employers should ensure that they maintain all of the practices which have become commonplace this year, such as social distancing, the use of PPE and hand sanitiser. Employers will need to continue to implement these practices for the foreseeable future, particularly where 100% take-up of the vaccine has not been achieved or where new starters have yet to receive the vaccine or employers do not require contractors or visitors to be vaccinated.
9. Need to review risk assessments
Any risk assessments carried out in response to COVID 19 may require updating to refer to the prospect of being vaccinated to protect against the risks of the virus. As part of this internal review of risk assessments, employers should consider alternative measures to receiving the vaccine. This will be of particular importance to those who are unable to receive the vaccine including those who are pregnant, trying to conceive or prone to allergic reactions.
10. The ongoing need to be flexible
Everyone has needed to be flexible since the start of the pandemic. As the country transitions optimistically to this new chapter, vaccine development will no doubt advance and availability will fluctuate. There are still many unanswered questions and employers will need to be flexible and ensure that they are fully aware of new developments.
Stuart Lawrenson is a partner at Shoosmiths specialising in commercial and employment law who provides “across the board” advice on contentious and non-contentious employment matters. He has an interest in the retail sector. He regularly advises on unfair dismissal, sex, race, age and disability discrimination claims; collective redundancy consultations, National Minimum Wage investigations and TUPE. Stuart is also a training specialist and regularly drafts and delivers bespoke client training. Recent advice has also focused on the effects of the pandemic including the Coronavirus Job Retention Scheme, employee mental health and homeworking
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