Is the Coronavirus vaccination a cure that will solve 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 roll out of the COVID-19 vaccine from the start of December, some sense of normality returning to the workplace in the near future is more of an attainable vision.
There are numerous employment law issues facing employers. We set out below 10 key issues employers are going to have to deal with as they face this next chapter of the virus.
Can you require your employees to be vaccinated?
Employers found to be forcibly vaccinating their workforce are likely to be committing the offences of assault and battery and on this basis, it is unlikely that any mandatory vaccination programme put in place by employers will be appropriate. However, what if the employer considers 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, with this comes the risk to the employer’s reputation and relationship with its workforce. It is doubtful that any employer would want to be labelled as one of the first employers to dismiss on the grounds of an employee refusing to be vaccinated. Any such behaviour is also likely to lead to a breakdown in the employer/employee relationship and could ultimately lead to claims of a breach of trust and confidence/constructive dismissal.
Could an employer’s mandatory vaccination programme risk discrimination claims?
In a word, yes. 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 or the employee falls into those individuals advised against having the vaccine including pregnant employees, anyone trying to conceive or anyone with significant allergies.
For others, a refusal might be based on the employee’s own religion and/or beliefs. Any such considerations are likely to push to the heart of whether a refusal is ultimately reasonable or not both from an unfair dismissal and a discrimination perspective.
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.
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 in the light of messaging from the Government which has made clear that there are no plans for the vaccinations to be made 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 the 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 with the aim of securing a high percentage of consent while 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 vaccine.
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.
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 one of the groups that are 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.
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 factthat 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 also be reviewed and updated accordingly.
The importance of maintaining current practices
Whilst it is hoped that there is now light at the end of the tunnel following the commencement of the vaccination programme, given how long it is going to take before everyone has been vaccinated employers should ensure that they maintain all of the practices which have become commonplace like 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.
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 are minded to 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.
The ongoing need to be flexible
If we have learnt only one lesson over the last nine months, it is the need to be flexible. As we transition optimistically to this new chapter, vaccine development will no doubt continue and availability will fluctuate. There are still many outstanding questions and as ever employers will need to be flexible and ensure that they are fully aware of the various issues that arise from this latest development.
Co-authors: Stuart Lawrenson, Partner and Lauren Piesley, Associate
Shoosmiths LLP – www.shoosmiths.co.uk
Stuart is a Partner and head of the employment law team and Lauren is an Associate, both in the Solent office of Shoosmiths, a major UK law firm with a national network of offices.