The first wave of the Covid-19 vaccinations has been widely hailed as ‘the beginning of the end’ for the global pandemic that has turned all of our lives upside down over the last year. For employers, the introduction of the vaccine will offer the opportunity to start bringing employees back to the workplace and could ultimately mean an end to – or at least a relaxation of – social distancing and additional safety measures.
However, while the scale of the programme means it is likely to be many months before the vaccine is available to the population as a whole, the national rollout will present many logistical and ethical challenges that employers are unlikely to have considered before.
How does the vaccine impact on an employer’s health and safety duties?
Employers have a general duty to ensure, as far as is reasonably practicable, the health, safety and welfare of all their employees while they are at work, which means they will have to consider how the availability of a vaccine impacts on this duty over the coming months.
There will be pressure for organisations to revisit their original risk assessments of the Covid-19 transmission risk for their organisation to see if any ‘Covid-secure’ measures can be relaxed or dispensed with once part of the workforce is vaccinated. It is currently unclear if vaccination will prevent the vaccinated person from transmitting Covid-19 to those that are not vaccinated so it is likely that the safety measures will have to remain in place for some time. However, employers may wish to consider whether, for example, a cohort of vaccinated employees could be asked to undertake some essential tasks where few of the existing risk mitigations are available.
Will an employer be under a duty to offer the vaccine if it becomes available privately?
This will depend on the specific setting but it seems unlikely that for most employers their health and safety duties will extend this far.
Will employers be able to insist that employees are vaccinated?
Requiring an entire workforce to be vaccinated will be difficult to achieve from both a legal and an employee relations perspective. The government is not currently introducing legislation to make the vaccination compulsory so it will be up to individuals to decide whether or not to get it.
It may be possible for employers who want to make the vaccination mandatory for their employees to introduce a specific provision in the employment contract but this may be easier to introduce for new recruits. For existing employees, it may not be seen as ‘a lawful and reasonable instruction’ and could lead to potential discrimination issues, claims for constructive unfair dismissal or human rights issues.
In some circumstances there may be health and safety or other justifications to require a vaccination, for example, for roles that require people to travel abroad to countries that only permit entry to vaccinated individuals. Any employer considering this approach would need to identify and record its justification for so doing.
In the short term, employers may wish to audit the workforce to identify which roles can continue to be done from home, which can be safely performed with existing safety measures in place and which, if any, might reasonably justify an employee having to have a vaccination in order to perform them. Be mindful that you will need to avoid situations where vaccinated staff are at a disadvantage compared to their unvaccinated counterparts, for example, being given additional duties or having fewer opportunities to work remotely.
What about employees who refuse to/cannot be vaccinated?
You may wish to take legal advice in these circumstances as all sorts of different scenarios will arise and each case will need to be dealt with on an individual basis.
In certain, limited cases you may be justified in taking disciplinary action (including dismissal) if their role cannot be altered to accommodate an employee’s refusal to be vacinnated and there are no redeployment opportunities. However, disciplinary action is likely to carry a significant legal risk, particularly where the refusal to be vaccinated is down to medical, religious or philosophical beliefs and formal action should only be considered as a last resort. Employers should be mindful that in the early stages of the vaccine, individuals are likely to have more concerns about the safety of the vaccine it so any concerns always be addressed carefully and with sensitivity.
Can an employer ask if an employee has been vaccinated?
Employers are free to ask employees to provide evidence of their vaccination but this will constitute special category data and as such will have to be processed accordingly under the GDPR. There will also be potential issues around privacy, unfair treatment/discrimination and falsified documentation that employers will need to address.
What about third parties, such as visitors?
You’ll also need to consider what approach you will take to visitors to your premises, to make sure it does not undermine your approach for employees. For example, will they need to provide evidence that they have been vaccinated before entering?
Consider too whether your day-to-day operations are likely to be disrupted by the vaccine rollout. Employees may need to take time off work to get the vaccine. We suggest employers readily agree to allow employees time off. Â Also, if the vaccine ever becomes available privately, you may wish to consider whether you would pay for your employees to get the vaccination.
The vaccination programme will evolve over the course of the next few months so employers will need to be prepared to adapt their plans and approach in line with new developments. For any queries about employment law, please contact Daniel Wilde on 01633 244233 or email wilded@hevans.comÂ
