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Coronavirus (COVID-19) Vaccination FAQs for Employers

on Monday, 13 September 2021.

The continued rollout of coronavirus (COVID-19) vaccinations raise many questions for employers. These FAQs answer the most common questions employers have around vaccinations and their employees.

FAQs


What Is the Government's Policy on Vaccinations Within the Workforce?

The Government has not legislated for the COVID-19 vaccine to be mandatory save for in respect of workers in regulated care homes in England. From 11 November 2021, employers in regulated care homes in England must ensure everyone entering the care home is either fully vaccinated, or exempt. The Government is also consulting on extending the mandatory vaccination requirement more widely for frontline staff within the health and social care sectors. No indication has been given of any intention to introduce mandatory vaccinations within any other employment sector.


Do Residential Special Schools Count As 'Regulated Care Homes' for the Purpose of the Rules on Mandatory Vaccination?

Yes, most residential special schools that do not fall under the statutory definition of "children's homes" will count as care homes and will therefore be subject to the mandatory vaccination requirements.


Can We Encourage Staff to Take the COVID-19 Vaccination Before Returning to the Physical Workplace?

Yes, employers can encourage staff to take the COVID-19 vaccine. Public Health England guidance goes so far as to ask employers to encourage staff to get vaccinated. The same guidance also encourages workplaces to share facts on vaccination and practical information  with staff on how and where to get vaccinated.


What Practical Steps Can We Take to Encourage Staff to Take the COVID-19 Vaccination?

The Public Health England guidance suggests employers might adopt measures including:

  • using the "employers communication toolkit" included within the guide to help shape conversations with staff
  • using vaccination 'champions' to promote the vaccination programme
  • having senior staff share their positive experiences of getting vaccinated
  • signposting staff to experts/community leaders who are promoting the vaccine
  • providing time off work for staff to attend vaccination appointments.

Can We Require Staff to Take the COVID-19 Vaccine Before Returning to the Physical Workplace?

This is technically possible, but imposing such a blanket requirement creates a disparity of treatment which could give rise to claims of discrimination. Depending on the circumstances, these arguments could equally be raised by vaccinated staff required to attend the workplace, as well as unvaccinated staff required to stay away.

Claims relating to disparity of treatment relating to vaccination status are likely to be claims of indirect discrimination. The protected characteristic on which any such claim would rely would depend on the circumstances, but could include age, disability, race, sex and pregnancy/maternity.

In order to successfully defend a claim of indirect discrimination the employer would need to show that the requirement to be vaccinated before attending the workplace was a proportionate means of achieving a legitimate aim. If the aim is to maintain a safe working requirement for all, the question would be whether such a requirement is a proportionate means of achieving that aim. Other factors identified in the employer's COVID-19 risk assessment, and how these have been mitigated, should also be taken into account.


Can We Prevent Unvaccinated Staff from Attending Our Offices?

Subject to the terms of their employment contract, an employee is entitled to work at the place of work described in their contract.  Preventing an employee from attending the workplace is difficult unless the employer has good reason. 

Employers should be continuing to keep their COVID-19 risk assessments under review in order to identify and mitigate the risks of COVID-19 transmission in the workplace. If the presence of unvaccinated staff is legitimately identified as a risk that cannot be mitigated (for example through social distancing, enhanced cleaning and limiting attendance in offices), it might be possible to justify imposing a requirement on unvaccinated staff to remain away from the office. However, employers should be aware that the imposition of such a requirement could lead to claims of unfair treatment and discrimination (see question 4 above).


Can We Require All Staff, Including Those Who Might Be Unvaccinated for Any Reason, to Return to the Office?

Yes, it is possible to start moving towards a physical return to the workplace for all staff, but individual circumstances should be taken into consideration before imposing any requirements.

Vaccination status alone should not be a reason for allowing an employee to remain at home if the employer has identified a genuine need for that individual to return to work. However, unvaccinated staff who are being required to return to the workplace against their will could seek to argue they are being unfairly treated (see question 4 above). It is also possible they could argue the employer is failing to provide them with a safe working environment. It is therefore important the employer can justify the basis on which it is asking an employee to return to the workplace.

Employers should consider the reasons why an individual is unvaccinated and their particular vulnerabilities, if any. Employers should engage individually with affected staff in order to explore whether it is possible to allay any concerns around taking the vaccine, and/or whether it is possible to use other means to make the employee feel confident to return to the office. Thought should also be given to the basis on which employers can justify requiring staff to return to work if they have been working effectively from home throughout the pandemic.

Employers should use their COVID-19 risk assessments to identify potential risks to both vaccinated and unvaccinated staff, and to set out how these might be mitigated (for example through social distancing, increased ventilation and cleaning regimes). Thought should be given to whether it is appropriate or possible to offer increased protection to unvaccinated staff (for example giving them more space around their workstation, sitting them next to an open window, etc), and/or whether it is appropriate to maintain working from home arrangements for the time being.


Can We Introduce a Compulsory Vaccinations Policy for All Employees?

There is no general right to require mandatory vaccinations within UK law, and the Government does not appear to have any intention of creating such a right. ACAS has produced guidance advising employers to encourage staff to be vaccinated without making vaccination a requirement. The EHRC has also confirmed that blanket mandatory vaccination policies could be unlawful as they will not necessarily be suitable for everybody, and give rise to the risk of discrimination claims.

Any employers considering the introduction of a compulsory vaccinations policy should be aware of the risks associated with doing so. Staff could claim they have been indirectly discriminated against (see question 4), and/or that they have been constructively dismissed if they feel genuinely unable to take the vaccine.


How Should We Respond to Staff Who Do Not Wish to Take the Vaccine?

Employers are likely to struggle to justify the imposition of a blanket vaccinations policy that involves treating unvaccinated staff differently to their vaccinated colleagues. It is important to engage on an individual basis with affected staff in order to understand their individual circumstances.

Employers should use individual employee engagement to seek to allay any concerns that have been identified, for example by giving factual information about the vaccine and using the practical steps set out at question 3 above. Any such engagement could also be used to explore what a return to the workplace might look like for unvaccinated staff, and whether it is appropriate to agree a departure from the employer's blanket policy in order to reflect individual circumstances.


Can We Ask Staff to Disclose Their Vaccination Status to Us?

Yes, it is possible to ask staff to share their vaccination status with their employer, but normal data protection considerations apply. Employee health information counts as special category personal data and so employers must ensure there is a lawful basis for processing this information, and that a condition has been identified for the processing special category data relating to employees' health under data protection law in the UK.

The ICO has produced guidance which states the sector in which the employer operates, the nature of the work carried out and specific health and safety risks will be relevant in deciding whether employers have a legitimate interest in recording the vaccination status of staff. The guidance also confirms that where an employer is only conducting a visual check of COVID passes and retains no personal data from the check, this will not constitute processing of special category personal data.


Can We Fairly Discipline or Dismiss Staff Who Refuse to Take the COVID-19 Vaccination?

If the request to be vaccinated constitutes a "reasonable management instruction" which is then ignored by individual staff, disciplinary action may be justifiable.   Before any disciplinary proceedings are commenced an employer will need to understand why the employee has refused the vaccine and it may not always be appropriate to commence disciplinary proceedings.  In certain workplaces where vaccination is mandated and it is not possible to accommodate someone who is not vaccinated, then it may be a reasonable management instructions such as within the care home sector, or where travel abroad is required to countries that require entrants to be vaccinated. A requirement to be vaccinated may be less of a reasonable management instruction where it is possible to perform the role effectively from home. The employee's refusal to comply with the request may also be justifiable depending on their own individual circumstances.

Employees with under two years' service do not have the right to claim ordinary unfair dismissal. In order to dismiss an employee with more than two years' service, the usual requirements to have a fair reason for dismissal and to run a fair process will apply. Employees whose refusal to be vaccinated is linked to a protected characteristic may also claim their disciplinary sanction or dismissal was discriminatory.


Should We Have a Written Vaccination Policy?

We would recommend all employers consider introducing a written vaccination policy as part of staff communications around office re-openings and maintaining a COVID-secure workplace. A written vaccinations policy could be used to encourage staff to take up the vaccine, to set out what support is available to facilitate vaccine take up, and also to set out what, if any, alternative steps will be required for unvaccinated staff attending the workplace (such as returning a negative lateral flow test before attendance at the office). A written policy could also contain a dispute resolution mechanism enabling it to be used as a guide to potentially sensitive discussions around employees' physical return to work.


For specialist legal advice on how coronavirus (COVID-19) vaccinations affect employers, please contact Gareth Edwards in our Employment Law team on 07899 915692, or complete the form below.

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