The Covid vaccination programme: A guide on how employers should respond

As the Covid vaccination roll out ramps up in the UK, we have answered some common questions to help provide clarity for employers regarding their responsibilities relating to employees and the vaccination programme. Take a read below.

How does the roll out of the vaccination programme impact our Covid workplace arrangements?

In short, it doesn’t at the moment. You’re still required to ensure that employees work from home where they can under the current lockdown measures. For workers who are not clinically extremely vulnerable (CEV) and who cannot work from home, you must continue to comply with your current Covid-secure workplace measures, including the maintenance of social distancing, regular hand washing/sanitising and correct use of PPE. If your Covid workplace risk assessment doesn’t currently refer to vaccinations, you should update it to do so.

Can we encourage our staff to have the vaccination?

Yes. There is clearly a public health benefit in as many people as possible receiving both doses of the vaccine as soon as possible. Arguably, if you encourage staff to be vaccinated, you are complying with your duties under the Health & Safety at Work Act 1974 to take reasonable steps to reduce workplace risks as the vaccine will help prevent individual employees, but also other members of staff and the public who the employee comes into contact with during the course of their work. Our view is that you can therefore take steps to encourage your staff to be vaccinated.

Can we require our staff to tell us if they’ve had the vaccine?

Probably not, unless it is directly relevant to their role (e.g. health and care). However, you can encourage them to do so on a voluntary basis. You should be clear about why you want this information from your staff, for example to assist with your workplace Covid risk assessment and measures, and to manage health and safety risks to other individuals. If an employee tells you that they haven’t had or won’t be having the vaccine, we would suggest that you discuss the matter with them on a case by case basis to determine as best you can, the reasons why they will not be vaccinated and the impact this will have on their own health and safety and that of others who they may be in contact with as part of their job.

Can we require our staff to have the vaccination?

It would be impossible (and unlawful) to physically force an employee to be vaccinated and may be discriminatory on the grounds of disability, religion, or philosophical belief. However, this needs to be balanced with your health and safety obligations and so some employers are considering what further steps can be taken.

It could be viewed as a reasonable instruction to require employees in some roles, for example health and social care, to have the vaccine and to disclose this to you. You will have to consider whether this applies to the nature of your work and the individual’s role on a case by case basis taking account of things such as the nature of the work, exposure to clinically vulnerable individuals and whether alternative steps can be taken to protect health & safety. Dismissing an employee for refusing a vaccine would, in our view, risk an unfair dismissal claim and, depending upon the reasons for refusal (see below), potentially amount to discrimination as well.

What do I do if a member of our staff refuses the vaccine?

We’d advise that you discuss with them the reasons why they’re not taking up the vaccine offer on a case by case basis.

• Medical reasons
  Some individuals have medical conditions (including known allergies or phobias) which would prevent them from having the vaccine. With these workers, you should take other steps to ensure that you are adequately protecting their health and safety whilst the pandemic continues – this could include extra Covid-secure workplace measures or a change of duties or work location (including working from home).

• Vaccine hesitancy
  You should engage sympathetically with employees who say that they are hesitant about having the vaccine. You can encourage them to take up their vaccine appointment when offered, but it’s recognised that an employer’s knowledge in response to Covid-specific vaccine concerns or an overall ‘anti-vax’ stance will be limited and so you can point individuals in the direction of more detailed medical knowledge. Reports of lower vaccine take up within ethnic minority groups should not be used by employers as a reason for targeting those groups and encouraging vaccination because of the obvious potential for discriminatory treatment.

• Refusal due to religious or philosophical belief
  Some employees may claim that the manifestation of their religion means that they cannot accept the vaccination. Other employees may argue that their ‘anti-vax’ stance amounts to a protected philosophical belief. In either situation, you should listen to the employee’s concerns, seek further advice if appropriate, respond to concerns where you’re able to do so and act cautiously to minimise the risk of allegations of discrimination.

Can CEV staff be required to return to work after they’ve had both vaccinations?

At present, all CEV individuals (including the wider category of individuals now regarded as being at higher risk of complications and therefore newly defined as CEV) are required to shield until 31 March. You should not be requiring them to attend the workplace before then. Our advice is that employers should not be allowing staff who they know are CEV to come to work before the end of March, even if the employee says that they wish to do so.

Whilst we don’t know what will happen between now and then, it’s hoped that vaccine take up will have significantly reduced Covid cases by April and that shielding can therefore be lifted allowing CEV workers to return to the workplace. However, further guidance is expected on this nearer the time and it may be that an individual risk assessment will need to be carried out for CEV staff returning to work.

If you need further guidance and clarification, please do get in touch with one of our team.