Following over a year of disruption to businesses as a result of the Covid-19 pandemic, many employers will understandably be eager to get back to ‘normal’ as soon as possible with a return to the workplace for staff and a flow of customers back through their doors.
The light at the end of the tunnel is shining as the vaccine drive continues, with increasing numbers of people becoming eligible and taking up the offer of a vaccination. But employers are already grappling with thorny issues around vaccination and many are confused as to what their role is, to protect their workforce, business and customers.
Some employers are stating that it is their intention to require employees to be vaccinated as a condition of their employment. However, a mandatory vaccination policy, or ‘no jab no job’ as it is being dubbed, brings huge employment law and human rights issues into play – and could potentially give rise to employee claims for discrimination, unfair dismissal, and even create personal injury issues in the event an employee is made to have the vaccine and suffers an adverse reaction.
Here are a few questions I’ve been asked recently by employers and our advice for each.
Can I force an employee to have the Covid-19 vaccination?
At present there is no legal basis for requiring staff to be vaccinated, and the Government has stated that there are no plans to make immunisation necessary. There are obvious sectors where requiring a vaccine would be seen as a reasonable request on the part of the employer, such as the care sector where it would be putting vulnerable people at risk without it. But, whilst businesses have a duty of care under common law and health and safety legislation to ensure a safe working environment for employees, the fact that the vaccine is (at the time of writing), not available to under 40s or recommended for pregnant women, by way of example; a mandatory vaccine policy would instantly be discriminating against those falling within those categories. Likewise, with staff who may refuse because of a protected characteristic such as disability or religious/philosophical belief.
Each business is different, and there will be relevant factors which can be can assessed to establish whether mandating the vaccine is a reasonable instruction in your business, but this should only be done with advice from legal professionals.
Can I ask an employee to disclose their vaccination status?
Employees have a duty to cooperate with health & safety legislation and it can be seen as a reasonable request for an employer to ask employees if they have been vaccinated as part of health & safety management procedures. The holding of such data can be done where it is necessary to do so for a specific legitimate purpose, but employers need to ensure they put in place additional safeguards to protect it.
Can I encourage uptake of the vaccine?
By all means employers can encourage their staff to get the vaccine and promote its benefits in line with public health guidance. There are no legal issues in relation to this and many employers already do this in the winter months for the flu jab so will have experience of encouraging staff to look after their physical health and wellbeing in this way.
Can I ask if an interview candidate has been vaccinated against Covid-19?
This type of question could potentially be used against an employer in a discrimination claim – with employment equality legislation prohibiting questions that would indicate that the candidates’ characteristics are being used to determine suitability for the role, such as age, religion or disability. Any questions around the Covid vaccination could be seen as a form of discrimination and should be avoided where possible.
Can an employee be dismissed if they don’t have the vaccine?
This is a very sensitive area and each case would have to be managed on its own facts, with numerous legal risks to be considered and the potential of claims from the employee of unfair dismissal, discrimination or victimisation. An employer needs to consider their own position – is having the vaccine is a reasonable management request and have all other alternatives been considered? Professional legal advice in this situation is crucial as there is the potential to get this very wrong!
Even with the rollout of the vaccine and the prospect of a return to normality come 21 June, employers need to ensure that they do not relax any efforts to ensure a Covid secure workplace until restrictions are officially lifted and the vast majority of the population are vaccinated.
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