With the easing of COVID restrictions set to continue, many employers will be contemplating a return to the workplace. As part of complying with the duty under health and safety legislation to take all 'reasonable steps' to reduce workplace risks, it's important to consider how to approach the question of vaccination.
We have recently undertaken a survey of employers, across various sectors, to understand their approach to COVID-19 vaccination in the workplace.
Two-thirds of the respondents to our survey said that they planned to encourage staff to take the vaccine
Introducing a vaccine policy is one way for an employer to share their organisation's views and expectations in relation to vaccination. The policy might cover employers and employees' health and safety obligations, as well as provide information on the COVID vaccine, time off for vaccinations and data protection issues.
Employers should bear in mind that consultation is required in relation to the introduction of any measures which may substantially affect employees' health and safety at work. If an employer plans to implement a vaccine policy, consultation may be required with union appointed health and safety representatives, elected employee representatives, the employees themselves, or with a combination of these, depending on the circumstances.
Only one-third of the respondents to our survey indicated that they planned to consult with staff in relation to the introduction of a vaccine policy which suggests that the requirement to consult may not be well-known. Again, HSE have produced useful guidance on consulting with employees on health and safety matters. Further information can be found here.
One-fifth of respondents indicated that they planned to require staff to disclose their vaccination status
If an employer plans to ask employees whether they've had a COVID-19 vaccine and retain records of this, data protection is a particularly important aspect.
Information relating to health constitutes 'special category' data. Therefore, the reason for recording vaccination status must be 'clear and compelling' and should not be collated on a 'just in case' basis. Read more about this in our earlier blog.
None of the respondents to our survey indicated that they planned to require staff to be vaccinated
The advice from ACAS is that it's best to support staff to get the vaccine without making it a requirement. ACAS suggest that if an employer feels that vaccination is a necessary requirement for someone to do their job, then they should work with staff or their workplace representative with a view to reaching agreement.
A blanket requirement on staff to be vaccinated, applied inflexibly, could place some employees at a particular disadvantage and increase the risk of discrimination claims arising. Further details can be found in our previous blog.
40% of those responding indicated that employees had expressed concern to HR or line managers about being vaccinated. There does appear to be increased vaccine hesitancy in the under 50s.
If there is a requirement to be vaccinated in place, the action an employer could take if a staff member refused would depend on whether:
- the requirement to be vaccinated was a 'reasonable' management instruction;
- vaccination was a proportionate means of addressing the risk posed to staff, customers, clients;
- there is pressure from vaccinated staff and/or third parties; and
- other options had been considered.
What is reasonable will depend on the facts and circumstances in each particular case and will be determined by reference to the context of the business, and whether alternative ways of working or other measures to reduce potential exposure to the virus had been explored. Given the risk of claims arising it's important for employers to take advice before taking action against any employees who refuse to comply with a mandatory vaccination policy.
COVID-19 risk assessments
Many employers will already have a COVID-19 risk assessment in place. However, it's important to keep risk assessments under review as the science and guidance evolves. The Health and Safety Executive ('HSE') have produced helpful guidance on what to include in a COVID risk assessment including: PPE, social distancing, cleaning, hygiene and ventilation. Further information can be found here.
As vaccination might reduce the COVID-19 risk in the workplace, employers should consider updating their risk assessment to take account of the wider vaccine rollout.
Please get in touch with a member of the employment and immigration team if you would like to discuss any of the above in more detail.