Covid Vaccination And Testing Employment Law And You

5/5/2021 12:00:00 AM

Covid Vaccination And Testing Employment Law And You

With over 31 million UK citizens now having had their first Covid-19 jab, the question being asked increasingly frequently is whether employers can require their workforce to get vaccinated.

All employers are under a duty to protect the health and safety of employees and provide a secure working environment under health and safety legislation. An employer will be expected to have undertaken a risk assessment and control measures should include employees being vaccinated as this is one of the clearest ways of protecting individuals from serious illness. Testing, if available should, be considered.

Employers should strongly encourage employees to be vaccinated where they can.

Can an employer require an employee to have a Covid vaccination?

This is an untested area, and has been discussed widely in the media. Relevant factors to consider could be:

• The risk profile within the workplace itself. For example, a care home may have a strong argument that in order to protect staff and vulnerable service users, an employee cannot come into work unless
they have been vaccinated or have a valid reason for not doing so.
• The workplace itself means having to work in small workspaces, so it is not possible to maintain recommended social distancing measures.
• Whether there is a need for an employee to be vaccinated in order to do their job, for example,if they needed to travel abroad and the country to which they were going required entrants to be vaccinated.
• The services carried out by the employer will be severely affected if lots of employees are off sick with Covid, the business may not be able to supply services if staff are off sick for an extended period of time.

Does requiring an employee have a Covid vaccination breach their human rights?

Article 8 of the European Convention of Human Rights protects the right to private and family life. The right for an individual to choose whether or not to be vaccinated is likely to fall within this right. It is possible to interfere with this right “in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

Therefore, if there is a real need to protect health or economic wellbeing, it may be possible to override Article 8. It requires a careful balance between the rights of the individual and employer which could also include those of service users.

On what basis could an employer require staff have a Covid vaccination?

Employers could only require employees to be vaccinated where it is identified within a risk assessment as a necessary requirement. If it is identified as a requirement, then it may be that an instruction to staff will amount to a reasonable management instruction.

What happens if an employee refuses to have a Covid vaccination?

If an employee does refuse, you should adopt the process as follows:

• Firstly, you will need to explain why the employee needs to be vaccinated. Any action against the employee is based on the fact that the instruction is reasonable. The employer’s business, the employee’s role and the reason why vaccination is necessary, will need to be considered carefully before arriving at a conclusion. If an instruction to be vaccinated is unreasonable, no further action can be taken.
• Investigate why they are refusing. This might be because they have been advised not to due to health issues such as having previous experience of a serious allergic reaction, pregnancy, or because of religious beliefs.
• If refusal is due to perceived risks of taking the vaccine or conspiracy theories promoted on social media, take steps to understand fully the individuals concern. Alleviate them using official information and explain why their role requires them to be vaccinated.
• If the employee continues to refuse, explain that other options will have to be considered. These include finding an alternative role for as long as the risk assessment identifies vaccination as a required measure; not being able to attend work which will be unpaid; the possibility of disciplinary action, which could result in dismissal. As mentioned earlier, this is an untested area and it is not known how tribunals will approach this issue. The employer should make sure that the requirement to be vaccinated is backed up with as much evidence as possible, and that it is reasonable.

Covid vaccination protected areas

If the employee refuses to be vaccinated due to pregnancy, disability or religion or belief, they will be protected from discriminatory treatment and should not be disciplined. A business may have to allow them to continue to work if the risk assessment allows, tell them that they cannot work and would be on unpaid leave, (unless they are considered sick in which case they would be entitled to SSP). However, pregnant employees who cannot work due to health and safety concerns will be entitled to full pay. In all of these cases it is important alternatives are sought, including working from home or making adjustments to their role.

Can employers make workplace Covid-19 testing mandatory?

Community testing initiatives or implementing the workplace testing which is now available to businesses that remain open with more than 50 employees, may reduce the risk within the workplace.

It is likely that only where it is necessary to do so because of the risk profile of the business, or the nature of the employee’s role, that testing could be made compulsory.

Health and safety consultation obligations

If an employer is considering introducing any measures affecting the health and safety of employees, there is an obligation to consult with staff or health and safety representatives before implementation. Introducing a vaccination and testing policy, particularly if they are going to be mandatory, is likely to trigger this obligation.

Covid vaccination data protection

Whenever an employer obtains information about an employee’s vaccination or testing status, they will be processing special category personal data. It will be important to comply with the Data Protection Act 2018 and the GDPR in this regard.

About the author

Simon Broome SIIRSM Tech IOSH has over 25 years' experience around risk management, honed through his industry background and working on operating software and management systems. He is a Specialist Member of the International Institute of Risk and Safety Management and a Technical Member of IOSH, and also holds the NEBOSH National Certificate in Fire Safety and Risk Management.