Given the good news this week that one in three adults have had their first COVID-19 vaccination, and over the coming months those aged 60 and under will now be called to be vaccinated, many employers will be considering how to approach vaccines with their workforce.
Can an employer require all employees to be vaccinated?
No, generally not. The government has confirmed that the COVID-19 vaccine will not be mandatory, even for frontline workers.
Employers cannot force employees to have a COVID-19 vaccination. Employers are responsible for ensuring the health and safety of their employees, as far as reasonably practicable. However, this would not justify insisting upon employees having vaccinations in most cases. Being vaccinated requires consent and at present there is no legislation that can force an individual to be vaccinated.
If employees were disciplined or dismissed for a failure to comply with such an instruction, their employer would risk unfair dismissal and/or discrimination claims.
Can employers prevent employees returning to the workplace until they have been vaccinated?
Yes, this is a possible option where employees can effectively work from home and the period is finite. If, however, employees cannot work from home, and the employer asks them to remain at home until they have been vaccinated, they will need to consider paying employees full pay. It will carry significant risk to ask them to take unpaid leave for anything other than a very short period.
Can employers legitimately encourage employees to have the vaccine?
Yes. The ACAS guidance on working safely during coronavirus says that employers should support staff in getting the vaccine but cannot force them to be vaccinated. Employers may do better to actively encourage their workforce to have the vaccine when it becomes available to them. This could be done by talking to staff about the vaccine, sharing the benefits of getting vaccinated and offering paid time off to attend a vaccination appointment.
Can employers keep a record of employees who have been vaccinated?
Yes, potentially you can do so but we recommend that giving this information is voluntary. Employers must comply with their data protection obligations in relation to the data collected and should be aware that simply asking the “have you been vaccinated?” increases the risk of discrimination claims.
In order to justify evidence gathering, employers must first establish a clear rationale for doing so. This could be where employees are required to travel for work or for safety reasons where staff are interacting with vulnerable people, for example.
It is also important to note that it is unlawful to ask potential recruits about their health prior to offering them a role, other than for prescribed reasons. In many cases, questioning an individual’s vaccination status during recruitment would be unlawful.
Can employers remove COVID-secure measures in the workplace now we have a vaccine?
No. For the time being employers will need to continue to follow the government’s industry specific COVID-secure workplace guidance until it is withdrawn. It is unlikely that all staff will have the vaccine for some time and therefore employers should therefore maintain COVID-secure measures, such as screens, social distancing and large-scale working from home where possible.
If you have any questions and would like to speak to our HR experts please get in touch with the Lucy Cotterell today on 01225 750 000 or email email@example.com.