As the vaccine programme has extended to the wider adult population following the government’s priority listing issued late in 2020, organisations will be starting to look at reopening their workplaces in line with the roadmap out of lockdown.
Questions have been raised with HR professionals around the conditions attached to those employees who have, have not, cannot or will not have the vaccine.
For those that wish to have the vaccine when called upon, employers should support staff in having it. This may include allowing time off for their appointment. Some adults experience covid like symptoms for days after having the ‘jab’ which may result in an employee being absent. Employers, where possible, should consider workload and shifts not just for the day of the employee’s vaccine appointment but potentially the day after as a minimum.
For clinically or clinically extremely vulnerable (CEV) staff having the vaccine means these workers can better protect themselves and after both doses may be able to finish shielding and return to the workplace. This should be done so with caution and only if absolutely necessary whilst the current lockdown rules are in place. There is an expectation that those required to shield continue to do so even if vaccinated until their shielding period finishes.
There is currently no law that says people must have the vaccine, even where the employer would prefer them to have it. However, the Health and Safety at Work Act 1974 states that employers should take reasonable steps to reduce any workplace risks. This gives employers justification to encourage employees to have the vaccine. Organisations may wish to talk discuss the following with their staff:
- how being vaccinated helps employees to be able to carry out their job;
- the rollout timeline of the vaccine;
- paying staff for the time off;
- whether the organisation will collect data on staff vaccinations (in line with GDPR); and
- the latest information on the vaccine from the government.
Dialogue with staff on a vaccine policy will help avoid disputes in the future and may enhance the reputation of the employer in terms of looking after the health and wellbeing of their staff. It is important that workplace risk assessments are updated to reflect the vaccination roll out. Other items to review may include the availability of vaccines for age groups, special measures for CEV members of staff and a review of the current covid-19 measures such as PPE, guidance for employees who are pregnant etc.
Where an employee does not want the vaccine, it is an employer’s responsibility to listen to their concerns as this could be due to health reasons such as a severe allergy or history of allergic reactions or pregnancy. As always employers should be sensitive to personal situations and information gathered should be treated confidentially and avoid potential discrimination for an employee not having the vaccine on these grounds.
Refusal of vaccine due to religious belief should be addressed sensitively and on an individual basis, even where employees follow the same religion there may be differences in the beliefs that are shared within that religion. For example, not all Christians wear a cross as a symbol of their faith.
Whilst there is no evidence to currently suggest that covid-19 vaccines are unsafe to pregnant (or breastfeeding) employees, there is still need for more evidence to be gathered before people who are pregnant are routinely offered the vaccination. A pregnant employee may be able to have the vaccine where they are at high risk of catching coronavirus in the workplace or they have underlying health conditions that means that they are at high risk of serious complications if they catch the virus.
Whilst employers should seriously consider the employee’s reasons for not having a vaccine and should implement reasonable alternatives, there may be situations such as health and care work where the vaccination is of more importance. Where there may be a legal risk to the employer they may not wish to allow unvaccinated employees in to the workplace, however, we strongly advise against starting any disciplinary action.
In some sectors it may be appropriate for clauses around vaccination to be included in employment contracts for new employees. Existing employees can be asked to agree to a compulsory vaccination, however, a variation of contract process would need to be instigated and will require consultation. Even if the employee agrees to the relevant clauses (as a new employee or current) they are still not obliged to provide this information on medical grounds.
Where it is reasonable for the employer to issue an instruction for a mandatory vaccination there may be grounds for a disciplinary process and dismissal of an employee who refuses to comply. It is important to note that the vaccine rollout is still in its early stages so this has not been tested in tribunals or courts yet.
To conclude, the battle against covid-19 relies heavily on the vaccine rollout as lockdown is eased and workplaces begin to reopen. A mandatory approach may be tempting for organisations but there are many legal barriers meaning that early dialogue with employees will be key over the coming months. Encouragement rather than demand would be a sensible approach.