Last reviewed 18 January 2021

The roll-out of Covid-19 vaccines is creating its own challenges. Opeyemi Ogundeji, researcher and employment law writer at Croner-i, explores this in more detail.

This article is a summary of the HR considerations. Our newer feature article covers the top FAQs employers may need to consider.

Coronavirus in a nutshell

The World Health Organization (WHO) explains that coronaviruses are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as SARS (Severe Acute Respiratory Syndrome). This particular strain is SARS-CoV-2 which is the cause of “Covid-19” and has spread across the globe, aptly referred to by the WHO as a “worldwide pandemic”.

The virus is spread from person to person through:

  • direct contact with a person while they are infectious

  • contact with droplets when an infected person coughs or sneezes

  • touching objects or surfaces (such as drinking mugs or desks) that were contaminated by droplets from secretions coughed or sneezed from an infected person with a confirmed infection, and then touching your mouth or face.

The UK Government has implemented a large number of new laws to combat its spread.

Local and national measures

Since March 2020, the UK Government has been forced into action to reduce the number of those infected by the virus through implementing national and local restrictions.

When the initial “lockdown” announcement came in March 2020, many employers implemented a short notice temporary homeworking arrangement when staff were “advised” to work from home where possible.

Since then, there have been several adjustments to the advice on working from home in England. Current advice during the 2021 lockdown is that employees should only go out to work where it is unreasonable for them to do their job from home.

In Scotland and Wales, employees must work from home where they can.

When measures were first implemented to protect people from contracting the virus, the Government stated that certain people who fell into the “vulnerable” category were “strongly advised” to work from home where possible. This category includes people who are 70 years old or over; women who were pregnant and those who have an underlying health condition such as diabetes, asthma, heart disease, etc.

People who are at particularly high risk are categorised as “clinically extremely vulnerable”. This includes people who have certain types of cancer, have had an organ transplant, severe asthma, etc were urged to stay at home to “shield” themselves. Such individuals received a letter from the NHS advising them to stay indoors and avoid all face-to-face contact with other people for 12 weeks.

Due to the reintroduction of lockdowns across Britain, shielding has returned in England, Scotland and Wales. This means that those who are most at risk from the coronavirus have been sent letters instructing them to stay in their homes meaning they should not come into work even if they cannot work from home.

There have been other measures implemented across the UK, including:

  • social distancing of one-metre-plus

  • keeping workplaces Covid-secure

  • a four-tier system in England

  • alert levels in Scotland and Wales

  • and more.

With the coronavirus vaccine making its way across the UK, these restrictions will quickly become a thing of the past, right? Maybe.

HR considerations

It is easy to see why employers would want restrictions to end and for the world to return to what we know as “normal”. While employers have been able to claim employees’ wages under the Job Retention Scheme since March 2020, the coronavirus and the measures implemented to curb the impact of it have had an adverse impact on employers across the UK. Some businesses have been forced to close for months, forcing them, as well as others, to make redundancies, furlough staff, and/or cut staff hours. It has also impacted upon trade for some non-essential retail businesses, especially those with stores on the high street.

Employers whose businesses have been severely affected, in ways that both have and have not been mentioned here, and those eager to return to some form of normality, may want all their employees to take the vaccine. However, employers should tread carefully with this as not everyone can or will want to take it.

Employers will need to consider how requiring the vaccine to be taken will affect those who cannot have it because of the following reasons:

  • Medical reasons — some people may be allergic to some elements in the vaccine and have therefore been advised by the Government not to take it. Pregnant women, and those wishing to become pregnant, are currently advised not to have the vaccine as it is usual not to recommend routine vaccination during pregnancy. (However, no specific concerns in relation to pregnancy have been raised so some women, such as those at high risk of catching the virus, may feel that it is better to go ahead with vaccination.)

  • Ethnic and/or religious reasons — the Royal Society for Public Health in a study has found that 57% of people of African and Asian descent would take the vaccine, compared with 79% of white people.

  • Philosophical beliefs — eg ethical vegans may object if any part of the vaccine, or the elements that comprises its creation, has used animals in a way that doesn’t accord with their beliefs. Those who align themselves with the “anti-vax” movement may try to argue that they fall within this category. Anyone bringing the claim would, of course, need to show that they had a belief, rather than just a viewpoint, and that it met the requirements to be considered as a philosophical belief.

Employers should check existing contracts of employment to ascertain their position, as they may be able to ask their staff to take the vaccine before returning to work. The likelihood of this, however, is low. It is not likely that contracts will contain anything which enables employers to require this vaccine to be taken, so an employer’s approach to this will be dependent on several factors — from the industry they operate within to the nature of the employee’s role. For example, healthcare workers may have provisions in their contracts which stipulate that they must take vaccinations or do all that is practicable to safeguard their health so they are able to carry out their duties without hindrance.

What employers will not benefit from doing is implementing disciplinary procedures if employees refuse to take the vaccine as this may run the risk of them facing claims of discrimination or unfair dismissal (including constructive unfair dismissal). Instead, they should think about sharing information from official sources regarding the vaccine to staff, to reduce the likelihood of them refusing the vaccine due to fear stemming from the spread of false information.

It is also important to note that some restrictions may remain in place even after the vaccine has been distributed to the vast majority of people, especially social distancing and some Covid-secure measures, meaning that requiring employees to have it will make little difference to the adjusted arrangements that are currently required.

The UK has now approved a number of vaccines for Covid-19 and the Government is currently in the process of offering them to the public according to its priority-based strategy. However, with the Government dedicated to offering a vaccine to all adults by the autumn, and carrying the message that getting a vaccine represents the best chance of returning to some form of normality, organisations may be wondering what the implications of the vaccines are.

Questions and answers

To what extent will these vaccines allow a return to normal working conditions?

It remains to be seen how quickly vaccines will permit coronavirus restrictions to be lifted and employers will need to keep up to date with all guidance coming from the Government. It should be remembered that it is likely to take some time to vaccinate the entirety of the UK population, meaning that we may yet need to live under certain levels of restriction for some time. That said, as more people are vaccinated, it can be assumed that the Government will consider lifting certain restrictions gradually.

Can the vaccine be offered as a work perk in the same way as the flu vaccine often is?

It has yet to be confirmed whether the vaccine will become available privately. Given the extreme demand for its usage worldwide, current commentary from the Government suggests that it will monitor carefully how and when it is distributed. That said, as more people are vaccinated, and Covid-19 hopefully becomes less of a threat, companies may be presented with the opportunity to seek private vaccinations, especially if vaccines need to be administered more than once

Can employers legally oblige employers to get the vaccine before returning to work? If so, how can this be enforced?

The Government has not chosen to make Covid-19 vaccine mandatory. Despite this, there may be some industry sectors that may implement a requirement for its staff to have the vaccine for safety reasons. This may apply to operators in the care sector where maintaining social distancing and adhering to other safety measures is not possible.

In workplaces that do not involve care, such as offices or retail, it may be considerably more difficult to try and put in place such an instruction because of the ability to have employees working from home, or maintaining social distancing in other ways to mitigate the risk. In addition, there could be a number of reasons why employees do not want to take the vaccine; they may have been advised not to due to a pre-existing medical condition, or due to their religious beliefs. If employees are subjected to a detriment as a result of this or other such reasons, the organisation may face a costly discrimination claim.

How should employers approach the vaccine issue?

The most appropriate course of action for employers appears to be to encourage staff to have the vaccine through awareness campaigns, focusing on the benefits for doing so. It should be made clear to staff through policy that while they will not be forced to take it, there are a significant number of benefits from doing so.

It should also be considered whether external trainers may be required to further explain why the vaccines are safe and effective. Alternatively, employees can be encouraged to make an informed decision about having the vaccine by reading information from official sources, alongside a cautionary note to verify the source of their reading matter due to the existence of uncertified information.

Employees should also be reminded to treat their colleagues with respect regardless of their decision over having the vaccine.

Takeaway

The main message for employers is that requiring employees to have the vaccine may be a reasonable move in a very limited set of circumstances and to do so outside of these circumstances carries the risk of tribunal claims from employees. Even where it would be reasonable to require the vaccine, employers must take an individual approach to employees who have valid reasons for refusal.