Covid 19 Vaccine – what impacts for employers?

With the start of a roll out of a vaccination against coronavirus, employers will be eager to look at how employees can be vaccinated to support their workplaces and getting back to ‘normal’. 

Details of how a vaccine will be rolled and which groups will be prioritised out have been published by the Government with it likely to be many months before healthy and younger people can access the vaccine, with no indication yet as to when a vaccine could be made commercially available.

Will employers be obliged to provide their employees with vaccination against Covid-19?

If vaccine(s) are available for employers to provide, probably.  At the moment this is not an option as a vaccine is not commercially available. If an employer requires an employee to be vaccinated as a health and safety measure, it would be required to pay for the cost of the vaccination.At the very least, employers will want to encourage employees in the strongest terms to be vaccinated.   

In terms of the obligations on employers under health and safety legislation, an employer must take all reasonably practicable steps to reduce workplace risks to their lowest practicable level. This is likely to include providing vaccinations for employees.  

Having provided the vaccine, can employers make their employees be vaccinated?

An employer cannot force vaccination on an employee.  The Prime Minister has made it clear that vaccination will not be mandatory.  However, as noted above, employers will want to encourage employees in the strongest terms to be vaccinated. 

Getting the vaccine could amount to a reasonable management request/instruction, unreasonable refusal of which by the employee may amount to disobedience and therefore justify disciplinary action. See below for more on this point.  It is best to speak to your Lexleyton solicitor before commencing any formal action.  

If you make arrangements for any vaccine to be administered to employees while they are at work then the time taken for administering it will qualify as working time for the purpose of the National Minimum Wage. 

Is an instruction to be vaccinated a reasonable management request?

Yes – very probably. 

Once a vaccine has been formally approved and officially recommended by the Government, then such an instruction is probably reasonable.  Reasonableness in this context will be highly fact-specific and employers should take all of the circumstances of any refusal in to consideration.  

Employers should be mindful that it is not necessary for a vaccine to be entirely effective against Coronavirus or that there are no potential side effects whatsoever.  Essentially, if the Government has certified vaccine(s) as safe, then those vaccine(s) are safe.  

Reasonableness is fact-specific.  For example, if an employee can show that they work exclusively from home (other than as a ‘workaround’ due to COvid-19) and are not expected to have close contact with colleagues or clients, an instruction to be vaccinated may not be a reasonable one. 

Will a refusal by an employee to be vaccinated amount to an unreasonable failure to comply with a reasonable management request?

While it is difficult to be absolute, it is likely that in most cases such a refusal will be unreasonable. 

Again, reasonableness of a refusal to be vaccinated will also be fact-specific.  Employers should ensure that they listen to an employee’s reason for any refusal as genuine medical, religious or philosophical reasons for refusal may be put forward and may also be reasonable. 

It is clear from the media that there is a minority of the population who are against vaccinations – referred to commonly as ‘anti-vaxxers’.  Employers will therefore need to be mindful of the risk of such a belief being protected under the Equality Act 2010.  There are a number of conditions to be satisfied in order to obtain this protection, perhaps most notably that that the belief is something worthy of respect in a democratic society.  Given the volume of scientific evidence in favour of vaccination, and given the possible impact on the population of Covid-19, statutory protection for the views of anti-vaxxers seems unlikely. 

Employers should also be mindful of any specific exceptions published by the Government which might make certain groups free from the general encouragement to be immunised.  Employers should stay up to date with published guidance.

Can an employer refuse entry to the workplace to an employee who refused to be vaccinated?

Although again fact-specific, the answer is almost certainly yes.   

When it is rolled out more widely, employers will need to update their risk assessments to reflect the availability of the vaccine. Given the potential for some employees to refuse a vaccination, risk assessments are likely to have to consider if additional measures can be put in place if an employee chooses not to be vaccinated. 

Remember that the reasonable management instruction to be vaccinated will be made in order to protect others in the workplace; with this in mind, allowing non-vaccinated employees to attend work is clearly a risk that an employer will not want to take. 

It is also strongly arguable that allowing non-vaccinated employees in to the workplace would amount to a breach of an employer’s duty of care. 

While it is true that employees are allowed, unvaccinated, in to workplaces at the moment (subject to the now familiar rules on social distancing etc.), the advent of vaccines amounts to a paradigm shift in the ways we combat Covid-19.  Once vaccines are rolled out, it cannot be said that previous preventative measures will be the best approach any more. 

Should an employee be paid for any time when they cannot work due to refusing to be vaccinated?

If the refusal to take the vaccine is unreasonable, then it is unlikely that they would need to be paid for such time. It would be the fault of the employee that they cannot work, as they refuse to follow the employer’s reasonable requirements in relation to health and safety.  

However, there will be situations where an employee’s refusal may be reasonable.  It such situations, pay would probably be due.  Take advice from your Lexleyton solicitor and consider alternatives (such as temporary working from home). 

What about data protection and privacy issues?

Employers should be mindful that vaccination information will amount to sensitive personal health data, whether or not an employee has been vaccinated.  

That data must therefore be processed and retained in accordance with data protection legislation and your existing privacy notices.   

A written notice and a reminder of the employer’s intentions regarding collating, processing and retaining this data, as well as up to date privacy notices and a record retention policy are essential. Speak to Lexleyton for support on this.  

Can an employer dismiss an employee who refuses to be vaccinated against Covid-19?

If the instruction to be vaccinated is a reasonable one, then yes they can.  

Employers should consider alternatives as noted above, but in any case where close contact with colleagues and clients is likely, an employer has the right and the obligation to take such steps as it deems reasonably necessary to protect them. 

Speak with your Lexleyton solicitor before taking any decisive action against an employee refusing the vaccine. Dismissal should always be the last resort. 

For any support around the issues raised here or to chat about any HR or employment law issue contact us for a free consultation with our expert employment lawyers or email us at legal@lexleyton.co.uk

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