A vaccine to prevent serious health effects from coronavirus has been developed and made available to the public. In this article, Nicola Mullineux, Group Content Manager at Croner-i explores the top questions employers may have surrounding the vaccine, such as requiring employees to be vaccinated and more.
What approach should I take towards the vaccine for my employees?
The roll out of the coronavirus vaccine signifies the biggest step yet in combating the risk posed to the public from serious illness and enables employers to begin to envisage a return to more normal operations. However, the Government has not currently made the take up of the vaccine mandatory in any sector so employers may have questions about their position when it comes to their employees having the vaccine.
Despite the protection that the vaccine offers to those who have it, employers should be aware that the restrictions put in place by the Government, including social distancing and other Covid-secure measures, are likely to remain in place for the foreseeable future. This means that, even where employees have had the vaccine, operations will not revert to “normal” for some time yet.
The approach to be taken to the vaccine by employers will be dictated by various things including their industry sector and the individual circumstances of the employee. While there are different approaches that employers may take, the most appropriate stance to take is likely to be one of encouragement to have the vaccine, rather than requirement.
Can I require my employees to have the vaccine?
Under the Health and Safety at Work Act 1974, employers have a duty to take all reasonably practicable steps to ensure the health, safety and welfare of their staff. However, it is not likely that this will include, for all employers, the requirement of all employees to have the vaccine.
Forcing employees to have the vaccine may well trigger human rights implications, as well as criminal charges of assault. Medical intervention requires an employee’s consent. A less intrusive method of implementing a policy that requires employees to have the vaccine may still carry human rights implications as well as risks from an employment rights perspective which are covered in this guidance note. Having a policy that requires employees to have the vaccine may, in some cases, be viewed as reasonable. This will be dictated by the individual facts of each case in question.
An employer’s position in this regard may be strengthened by:
an existing clause within the contract of employment stating that medical intervention is to be administered where necessary to protect the employee’s health and that of those they come into contact with at work, or
the industry within which they operate, eg an employee who cares for vulnerable adults could be placed under an instruction to have the vaccine because of the high-risk nature of the work.
Notwithstanding the above, employers would have to balance any requirement against the reality that social distancing and other health and safety measures including the wearing of a face covering currently in place are likely to remain in place for some time; having the vaccine will not remove the need to continue to follow Covid-secure measures in the workplace. There is also no evidence yet to demonstrate that the vaccine prevents transmission of the virus, so medical professionals expect it to reduce the risk. Employers who have successfully identified alternative ways to reduce the risk of exposure, for example, by implementing homeworking, may not be in a strong position to require employees to have the vaccine.
Employers should consider whether there are any other reasonable steps that can be taken to mitigate the risk of exposure to coronavirus before requiring employees to have the vaccine. Some employees will have valid reasons for refusing to have the vaccine and will receive legal protection against action taken against them for this reason. Employers will, therefore, need to consider how to accommodate these individuals. Other employees who do not wish to have the vaccine may then question why that accommodation cannot be extended to them.
Can I require my care home staff to have the vaccine?
Certain care home workers in England are legally required to be fully vaccinated under the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021.
The respective governments in Scotland and Wales have confirmed that care home staff in those nations will not be legally required to have the vaccine.
Deployment will be conditional upon being fully vaccinated in care homes:
which are registered with the Care Quality Commission
which provide nursing or personal care
where the staff member is not medically exempt from having the vaccine.
It applies to:
all workers employed directly by the care home or care home provider
full-time and part-time workers
those employed by an agency and deployed by the care home
volunteers deployed in the care home
those who do not have a medical exemption to having the vaccine.
The law will be in place from 11 November 2021. From this date, anyone working in a care home within the scope of the regulations must be fully vaccinated unless medically exempt.
Organisations should now consider:
keeping good recording systems for who has had the vaccine and who has not
holding meetings with employees who have not had the vaccine to find out why
if not medically exempt, warning employees that action will be taken if they don’t have the vaccine
looking for alternative non-front line jobs for those who still choose not to have the vaccine
if no alternative job, terminating employment.
Regardless of the reason behind it, dismissals will still be unfair if the correct meetings and documentation are not used. This measure will not exempt care homes from normal employment law rules and procedures on fair dismissals.
The Government is also considering making both the Covid vaccine and the flu vaccine mandatory for deployment in other healthcare sectors in England.
What are the HR risks with requiring employees to have the vaccine?
Having a policy requiring employees to take specific action is commonly accompanied by the threat of action against those who refuse to comply with the policy, which could include dismissal.
Employees with two years’ continuous service have the right not to be unfairly dismissed. Fair dismissals require a potentially fair reason for dismissal, a fair procedure and the decision to dismiss must fall within the range of reasonable responses. It is likely that employers who proceed with dismissal of an employee for refusing to have the vaccine will rely on the “some other substantial reason” ground.
Employers would need to show that it was reasonable to dismiss the employee in the circumstances, including an assessment of whether there were any other ways that the employee’s refusal could be dealt with in order to keep them in employment, including consideration of other available roles.
Employees may feel that the implied term of mutual trust and confidence has been breached if their employer imposes a requirement to have the vaccine, entitling them to resign in protest and claim constructive dismissal.
Employees may have valid reasons for refusing to have the vaccine which are connected to a protected characteristic covered by the Equality Act 2010. For example:
pregnancy — the vaccines have not yet been tested in pregnancy, so until more information is available, those who are pregnant should not routinely have the vaccine
medical conditions — those with certain medical conditions are advised not to have the vaccine. Some medical conditions will qualify as a disability and so be covered by the Equality Act
religion or belief — some employees may refuse to have the vaccine due to their religious belief. Though it would need to be tested by an employment tribunal, those who align themselves with the anti-vax movement may argue that they are protected by the philosophical belief element of the Equality Act.
It is important, therefore, to fully understand why an employee has refused a reasonable management instruction to have the vaccine, bearing in mind the potentially personal nature of the refusal. For example, an employee trying to become pregnant may have wished not to share that information. Alternatively, an employee may have to reveal a previously undisclosed disability as their reason.
Employers should also be wary of treating employees differently while waiting for them to be called up for their vaccination. The current Government strategy for rolling out vaccinations is partly based on age so older employees will be vaccinated at what could be a considerably earlier stage than younger employees. This could lead to complaints of age discrimination.
Having a protected characteristic does not make dismissal impossible. Indirect discrimination, for example, can be objectively justified therefore the employer would have the opportunity to say that they had a legitimate aim for requiring the vaccine to be taken, and that there was no other less discriminatory method than dismissal (or other action) or achieving that aim.
Can I insert a clause in contracts to require employees to have the vaccine?
Where existing employees are concerned, this would mean a change to terms and conditions. Changes to contractual terms and conditions cannot generally be made without employee agreement; consultation with employees (and trade unions, where necessary) would be needed with a view to seeking agreement. To impose the change without agreement may amount to a constructive dismissal.
Where agreement is not forthcoming, you may decide to terminate the employee’s employment and re-employ them on the new terms. However, this runs the risk of unfair dismissal and specific advice should always be taken in this regard.
Including a contractual clause for new employees will need agreement from the employee to be employed on those terms.
In either case, implementation of the clause should be done in a reasonable way and take into consideration the individual circumstances of the employee in question.
How can I encourage my employees to have the vaccine?
As noted earlier, encouraging employees to have the vaccine will be the most appropriate stance for the vast majority of employers.
You may consider encouraging employees to have the vaccine in the following ways:
providing access to accurate and credible information about the vaccine to allow employees to make an informed decision about it themselves, and reminding them to check the source of any information they may seek for themselves to guard against any misinformation
having senior management pledge to have the vaccine when it becomes available to them (but avoiding placing pressure on those staff to have the vaccine
permitting time off during working hours for attendance at appointments
paying employees for the time off to attend an appointment
putting enhanced provisions in place for employees who experience any sickness caused by the vaccine.
Having a policy addressing vaccine issues will be the most appropriate vehicle to let your employees know your stance on them.
Can shielding employees return to work once vaccinated?
Further Government advice on this topic is awaited, and specifically clarification on the effect of the vaccine on those with certain medical conditions. In addition, guidance indicates that the benefits of the vaccine do not take effect immediately.