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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.


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

From 11 November 2021, regulated care homes must ensure no person enters the care home unless they provide evidence they have been fully vaccinated against COVID-19, or that they are exempt. The regulations making vaccinations mandatory in the care home sector will be reviewed in November 2022, after they have been in force for one year.

The Government has also confirmed vaccination will become mandatory within the wider health and social care sector from 1 April 2022. Affected workers will be those in direct face-to-face contact with service users, including front-line workers and non-clinical workers such as receptionists, ward clerks, porters and cleaners. Those who do not have direct face to face contact with service users will not be captured by the new rules. For example, providers of remote triage or telephone consultations or managerial staff working in sites set apart from patient areas will fall outside the scope of the rules.  

No indication has been given of any intention to introduce mandatory vaccinations within any other sector.

Do Staff Have to Have Received a Booster in Order to Be Considered Fully Vaccinated?

The operational guidance Vaccination of people working or deployed in care homes confirms that booster doses of the vaccine are not currently included in the regulations mandating vaccination within the care home sector, so staff do not have to have received the booster in order to be considered fully vaccinated. However, the regulations could be updated in order to expressly include the requirement to receive a booster injection. In any event, the guidance advises employers to strongly encourage eligible workers to take up the booster.

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

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?

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.

There may of course be some roles where it is more straightforward to establish that there is a legitimate aim and that the requirement is proportionate (for example a role involving travel or conferences where COVID passes are needed for them to fulfil their duties).

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. In terms of assessing this risk understanding why an individual is not content to work from home and why they consider they are being disadvantaged by doing so may be helpful way of approaching this and managing the risk of a claim.

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

As at 13 December the Government guidance had reverted to work from home where you can.

It will ultimately be for an employer to determine whether an individual is able to fulfil the requirements of their role from home. If not, then it is possible to start moving towards a physical return to the workplace, but individual circumstances should be taken into consideration before imposing any blanket requirements.

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?

We are aware that some employers have taken this approach, however it is not straightforward given that the overarching position is that we do not have mandatory vaccination requirements (other than in specific sectors as noted above) 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. It is important to be aware that imposing such a blanket requirement could give rise to claims of discrimination, particularly if individuals feel they are unable to comply on grounds of religion, pregnancy, a health condition or some other protected characteristic.

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

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.

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?

This will depend on whether there is a legitimate reason such as the regulatory requirement, or it being necessary for them to fulfil their duties.

In all cases it will be necessary to ensure that any decision is 'fair in all the circumstances,' this will include trying to overcome any obstacles and exploring any alternatives. It will also be essential to follow a fair process prior to reaching a decision. Particular care will need to be taken when an individual has a protected characteristic which accounts for their refusal.

Should We Have a Written Vaccination Policy?

We would recommend all employers consider introducing a written vaccination policy as part of staff communications and as part of 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,  steps will be required for attending the workplace.

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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