Employment law update: The COVID-19 vaccine – what does this mean for employers ahead of 21 June 2021?

As the national roll-out of the COVID-19 vaccinations are well underway, many workplaces will be gearing up to welcome the workforce into their offices once again in accordance with the Government’s roadmap. The vaccine offers employers peace of mind, in that, employers can more readily revert to in-office working but a covid-secure environment will still be required. Whilst returning to the office can effectively diminish the challenges presented by remote working, the vaccination roll-out does present novel issues for employers to address.

With the proposed national roll-out of the vaccine taking place across several months, such considerations will be important to keep in mind.

The starting point – employers’ health and safety duties

Employers have a duty of care towards employees to ensure they protect, as far as is reasonably practicable, the health and safety of their employees. The vaccination rollout will undoubtedly impact this duty over the coming months.

Prudent employers should be armed with COVID-19 transmission risk assessments, and if there are pre-vaccination risk assessments in place, revisit those to assess whether any COVID-secure measures should be amended. Many of the measures to be implemented will depend on the size and practical needs of the employer, i.e., how big is the office, is there a practical need for all employees to be in at one time, do any employees hold certain  protected characteristics which need to be accounted for in any such risk assessment.

A key thing for employers to keep in mind is that there is, as of yet, no empirical evidence delving into the effectiveness of the vaccination against the variant and the physical mixing of vaccinated individuals with those who have not yet been administered with the vaccine. Some organisations have proposed a divide, with only those employees who have been vaccinated attending the office physically. Employers should err on the side of caution as such an approach could potentially amount to discrimination for individuals with a protected characteristic which may prohibit them from obtaining quick access to the vaccine, for example pregnant employees, employees with certain health conditions for which the vaccine is not advised or younger employees not yet invited for the vaccine.

Equally, less is known as to how effective just one dose of the vaccine is compared to receiving both and whether a health and safety risk is posed by having a one-dose employee attending the workforce with an employee who has not yet been vaccinated and is ‘at risk’.

Studies, which are widely reported on mainstream news, do indicate that the vaccination has lowered transmission rates, but the Government guidance still proposes taking a restrictive approach. This is perhaps an indication for workplaces to also adopt restrictive means and hold onto remote working in so far as is possible (until at least 21 June 2021, pending the Government’s decision on stage 4 of the roadmap) before cultivating the specific COVID-secure measures best suited to that workplace.

Thought should also be given to how specific workforces can best adapt to the vaccine. Having fully vaccinated staff, for whom attending the office physically poses less of a risk, perform in person duties incapable of being performed remotely, could give rise to complaints, a loss of morale, and disgruntled employees.

Employers should ensure that thorough risk assessments are carried out, reviewed regularly and  widely circulated, so the workforce is kept informed. Encouragement and support should be key.

Can employers require employees to be vaccinated? What steps should employers take for best practice?

This may be difficult to achieve from both a legal and moral perspective.

The starting point, legally, is that the Government has not yet introduced a law to make the vaccination compulsory and it is an employee’s individual choice as to whether they are vaccinated or not.

Employers can, in theory, make the vaccine compulsory for employees by perhaps introducing a specific provision in employees’ contracts of employment or via a policy. Some employers may even look to make the vaccination a pre-condition of employment for any prospective roles, however such contractual requirements or workplace policies need to have flexibility, and exclusions considered, to account for circumstances whereby individuals are unable or unwilling to be vaccinated (for instance, due to religious or philosophical belief, medical reasons, e.g. pregnancy,  health concerns, etc).

It is important to keep in mind that a philosophical belief has been held to be protected characteristic by the Employment Tribunal, meaning if an employee has a genuine belief  that the vaccine is not suitable, they have the right not to be discriminated against for holding that belief.

It is crucial for employers to ensure any such policies are drafted flexibly with suitable exclusions and carve outs, to avoid potentially giving rise to acts of discrimination on various grounds.

We suggest erring on the side of caution in relation to any contractual or policy requirement for an employee to be vaccinated, given the number of potential challenges it could pose from an employment perspective. Employees could argue that forcing them to be vaccinated is a breach of their trust and confidence, for instance. They could also argue breach of contract in respect of any proposed amendments to their contracts of employment. Employees may also be able to allege indirect discrimination in respect of any role-specific requirements or employment related procedures requiring them to be vaccinated.

It is always advisable to seek specific advice if you are considering such a policy or contractual requirement, given the risks.

Employers can consider conducting an audit of the roles and requirements within its organisations. Are there any roles, for instance, which can continue to be performed from home? Are there roles which can effectively and safely be performed within a COVID-19 secure workplace?

Employers should also be wary about segregating employees who have been vaccinated from those who have not, i.e., encouraging vaccinated employees to return to the workplace, whilst asking non-vaccinated employees to continue to work from home. This may be putting those who are vaccinated at a disadvantage against those who are not, i.e., having to perform additional duties to being in attendance in the office, or having less of an opportunity to work from home.

How to deal with those who refuse to be vaccinated?

One such way of dealing is to allow those who refuse to be vaccinated to continue to work from home, to reduce the potential risk to them of contracting COVID-19 and to comply with your duty of care towards their health and safety. Regular COVID-19 testing could also be introduced.

Care should be afforded to those deemed as clinically extremely vulnerable, and any employee in such a group who refuses to be vaccinated. In such a scenario, a Covid-secure workplace may still pose a risk.

If employees refuse, employers could engage in informal processes to seek to understand why they do not wish to be vaccinated. In addition to circulating updated risk assessments, employers could also provide objective information about the vaccine and encourage employees to openly discuss any concerns with their managers and/or GPs. Making employees feel supported can go a long way.

Roles which cannot be carried out safely without employees being vaccinated

It may be more reasonable in  circumstances where a role cannot be carried out safely without the vaccine to make the vaccination mandatory (though what is reasonable can and will vary, depending on the time). Each case will need to be dealt with on a case-by-case basis and addressed sensitively.

Our experienced employment team are on hand to provide tailored legal advice in such a scenario.

Alternatives

Whether mandatory vaccination is proportionate will depend on various factors such as how you operate the policy in practice, the impact on individual workers. and whether there are less intrusive ways of reducing risk. To this end, employers should consider whether other steps be taken to make the workplace COVID-19 secure (social distancing, screens, ventilation), can the employee continue work from home, can the employee be re-deployed into a role for which other COVID-19 steps would be sufficient and vaccination not required, could regular testing assist?

Data protection

As the UK readies to lift the lid on the final phase of lockdown, employers should ensure that any record-keeping in relation to employees who have been vaccinated is in accordance with the General Data Protection Regulation (“GDPR”). Health data constitutes special category data under the GDPR.

What should employers do now?

The key to preparing a workplace for the vaccination roll-out is ensuring you are prepared:

  1. Maintain COVID-19 related health and safety measures – this is imperative as the current Government guidance remains restrictive.
  2. Maintain transparency with the workforce regarding decision making – this could be by way of emails providing further information about the vaccination. Employees could also be signposted to internal and external hubs offering support to them.
  3. Consider practical measures needed for those to be vaccinated – is a policy needed for instance, will employees be offered time off work to be vaccinated, will that time be paid/unpaid.
  4. Ensure inclusion, equality and diversity are the same – remind employees of the need to be respectful if a colleague’s view towards the vaccine differs from their own.
  5. Consider which steps need to be implemented in respect of working – this can be achieved by conducting an audit and updated risk assessment. Will those who are vaccinated and those who are not vaccinated be treated differently? How will you find out which employees are vaccinated, and which are not? Consider data protection when collecting such information.
  6. Consider which steps need to be implemented in respect of third parties – do external visitors, i.e. postmen or delivery drivers, need to be vaccinated to enter the premises.
  7. Formulate an approach to prospective challenges to any vaccination policy, if minded to implement – again, this is something which we would suggest obtaining legal advice on as the best way to proceed varies on a workplace-to-workplace basis.

If you have any queries as to how the above developments or the vaccination rollout may affect your workforce, or if you are an employee concerned about the way in which your employer has handled the implementation of a ‘no jab no job’ type policy or contractual requirement, please contact our experienced employment team for further advice.

Please note, Government guidance referred to above is true at the time of preparing this article (2 June 2021). The latest advice should always be consulted.

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