With the ongoing rollout of the Covid vaccine, we are getting closer to people of working age receiving their call-ups. Of course, an ever-growing number of key workers, older people, and those with underlying conditions have already received the first dose of the vaccine. However, it seems likely to be late summer before those of working age, without underlying conditions, in non-key or essential roles, will be invited to have the vaccine.
There remains doubt over when employers will be able to bring staff back to their offices in significant numbers. Decisions will be informed by the number of employees who have been vaccinated, and by ongoing restrictions on activities, which in turn will be driven by the number of cases at the time. Many employers will have longer term plans to keep employees working remotely even if they could technically return to the office. There really is no standard practice here, as each employer and each workplace (and workforce) are unique.
Planning for the return to ‘normality’
The availability of Covid vaccines forms an integral part of planning for a business’s return to a new normal. Employers need to be prepared to deal with a variety of issues relating to Covid vaccinations. I shall cover a few of them here.
Underpinning the considerations below is the ongoing need to carry out appropriate risk assessments – and update them as things change. A properly considered risk assessment will identify the risks to the business and the workplace and enable the employer to consider and introduce ways to manage those risks. Informed by the risk assessment, the employer can review issues like whether they can require employees to have been vaccinated before letting them return to the workplace.
Your questions answered:
Can employers force their employees to get the vaccine?
This will depend on the nature of the employer’s operation and the employee’s role. For instance, in care homes and medical environments, it’s more likely to be reasonable to require employees to have the vaccine to protect those they are treating or caring for. On the other hand, an employee who works alone, without physical contact with others for work, may not be unreasonable in refusing to get the vaccine.
Ultimately, the question is whether requiring employees to have the vaccine is a ‘reasonable instruction’ for the employer concerned. If it is, and an employee refuses, it’s more likely to be fair to discipline or dismiss them for refusing. Requiring an employee who works from home to have the vaccine is less likely to be reasonable and as such, disciplinary action or dismissal for refusing is less likely to be fair. Each situation will need to be examined on its merits.
Can employers treat employees differently based on whether they’ve had the vaccine?
Here, we need to consider potential indirect discrimination issues. Employees (and applicants) are protected from discrimination on a number of grounds, called ‘protected characteristics’, including age, disability, pregnancy, sex and religion or belief. This is a potentially very thorny area, with plenty of pitfalls and risks for the unwary.
Some people with certain medical conditions are being advised against having the vaccine. If, on being pressed to explain why they are not getting the vaccine, an employee discloses a condition that may amount to a disability, the employer would need to follow up and investigate. This would include ascertaining, with medical evidence, whether the condition does amount to a disability; clarifying any impact the disability may have on the employee; and any reasonable adjustments that should be made to reduce that impact.
On the one hand, it’s good for an employer to be aware of disabilities so it can ensure that it treats the employee appropriately in line with its obligations – this is about employee relations of course, but also risk management and avoiding successful disability discrimination claims. On the other hand, while an employer is able to say they weren’t aware of a disability, they are more able to deflect claims that they took action in some way because of the employee’s disability.
Similar concerns arise with pregnancy. Whilst an employer remains unaware that an employee is pregnant, they can’t be said to make decisions because of that pregnancy. Pregnant women and breastfeeding mothers are being advised against having the vaccine. However, many women don’t wish to disclose their pregnancy until after the first 12 weeks. Women may feel forced to disclose their pregnancy before they are ready by way of justifying a refusal to have the vaccine. The sad fact is that many employers do treat women unfairly when they become pregnant. Taking action against a pregnant employee for refusing to have the vaccine would be discriminatory and unfair.
Another potential area of risk is in relation to religion or belief discrimination. Some staff may have religious reasons for refusing the vaccine. There is also a risk that ‘anti vax’ beliefs could amount to a ‘philosophical belief’ for the purposes of the discrimination legislation, meaning that if an employee is disadvantaged for refusing the vaccine because of an anti vax belief could lead to a claim.
What about Health and Safety?
Following on from the pregnant employee example above, employers have to carry out a risk assessment for pregnant staff – this would now need to include risk associated with Covid and not having had the vaccine because of pregnancy. The employer would need to consider whether the pregnant employee should continue to work from home. Furlough might be an option, but equally, furloughing an employee simply because they are pregnant is also likely potentially discriminatory.
Many employers will conclude as part of their risk assessment that they should seek to ensure that all staff are vaccinated. Employers may indeed have a health and safety duty to ensure employees are provided with information about how to access the vaccine and relevant information about it.
As an employer, do I need to consider Data Protection?
The information as to whether or not an employee has been vaccinated will be special category health data for the purposes of data protection under GDPR. Employers will need to notify staff about the data protection issues, update privacy policies and so on.
In addition, employers will need to ascertain what grounds they have for asking about vaccination, seeking proof of vaccination, and whether they can ask for reasons for refusal. In any event, information should not be disclosed to anyone without express consent.
Tips for employers:
Employers are perfectly entitled to suggest that staff get vaccinated – in the same way as many employers encourage staff to get the annual flu vaccine. However, if an employee refuses, great care needs to be taken to avoid potential discrimination claims. Usually, it’s best to communicate with the employee to see what the issues and concerns are and see if there is a way through.
If there is no way to make changes to enable the employee to keep working – if they can’t do their job remotely, but the employer feels they can’t be on site without a vaccine – then it may be necessary to consider dismissing. Even then, it will be relevant whether their refusal only has short term relevance – for instance, if it turns out that annual boosters are necessary, then all staff are back to square one in the near future.
In short, as with Covid generally, there are a lot of unknowns. We think it’s best to be kind, keep communication channels open, respect opposing views, and seek to find a compromise if at all possible.
Finally – seek advice at an early stage. Contact our employment team and we can help find a workable solution, whatever that means in the circumstances at hand.