HR bits and bytes (September) – Vaccination guide for Employers

Conversations around vaccinations and the workplace continue to dominate at present, here are our practical tips for employers.

Firstly, employers should remember that the vaccine is just one measure of protection and the extent to which the virus and necessary action needed is still unknown. Now that legal restrictions have come to an end, employers still need to question whether bringing employees into the workplace is essential as part of their risk management and assessment, alongside considering  measures such as ventilation, handwashing, social distancing and the use of PPE. Employers are encouraged to stay up to date with the latest plans and advice on the government website and adjust their plans accordingly.

Managing vaccinated employees

In the UK, generally, vaccination has not been mandatory, and this has not changed for COVID-19 for the general population. However, new legislation means that, from 11 November 2021, people working in a Care Quality Commission-registered care home for adults, need two doses of a COVID-19 vaccine to enter the premises (unless they have a medical exemption). The residents and their visitors do not have to be vaccinated. The Government is currently consulting on extending mandatory vaccination to all NHS staff as well as care workers, but at the time of writing no decisions have been made.

For public health reasons and to protect themselves and others, it’s desirable to have as many people vaccinated against COVID-19 as possible, employers should encourage staff to be vaccinated and publicise the benefits to improve take up of the vaccine. As COVID-19 vaccination and boosters extend throughout the UK, employers should incorporate plans on the implications for their staff, visitors and workplace as a whole by

  • communicating with all employees and encourage then to take up vaccines and boosters;
  • reviewing risk assessments regularly
  • considering a vaccine statement that can be shared with all employees.
  • employers should also consider their contractual terms and data protection, disciplinary, grievance and dismissal policies.

Employees who can’t have the vaccine & vaccine hesitancy

Some individuals may be advised not to have the vaccine due to a medical condition, while others may be allergic or have trypanophobia (a fear of needles). These people could be protected by the disability provisions within the Equality Act 2010 if they refuse the vaccine.

For employees with a genuine medical reason that prevents vaccination, employers should consider other steps with regards to health and safety, for example reinforcing their risk management, facilitating remote working where possible, or considering a different role. In some cases, medical advice may need to be taken with the employee’s consent.

Line managers will likely be the first port of call for most employee concerns, so should be briefed on the Company’s vaccination policy and any awareness campaign around vaccinations, possible questions and concerns they could face from employees about the vaccine, and how to deal with them.  Employers should listen to any concerns employees have around vaccination with empathy and understanding.

Pregnant Employees

The JCVI has now advised that pregnant women should be offered the COVID-19 vaccine based on their age and clinical risk group. The advice still states that pregnant women should discuss the risks and benefits of vaccination with their clinician, including the latest evidence on safety and which vaccines they should receive.

Breastfeeding women can have the COVID-19 vaccine.

Women do not need to avoid pregnancy after vaccination. However, those who avoid vaccination because they are planning a pregnancy may be able to use this to assert sex discrimination if they are then treated less favourably or are later dismissed due to this refusal.

Refusal of the vaccine

Employees may refuse vaccines for many reasons, ranging from concerns about potential allergy, a phobia of needles or misplaced concerns. There is also misinformation around vaccines which could lead to concerns or refusal. Whatever reason an employee has for refusing to be vaccinated, employers should consider each case individually.

If staff refuse vaccination employers should seriously consider the employee’s reasons and any concerns they may have, and look to implement alternative solutions, where relevant. This could include continued working from home, if possible, social distancing within the workplace, screens, the use of PPE.  You may want to consider changing the employee’s work responsibilities or role if this could enable them to work remotely or in a safer working environment.

Ultimately, if their return to the workplace could pose a threat to the wider workforce’s health and safety, employers may consider not allowing unvaccinated employees to return to the workplace. This entails a legal risk for the employer. Indirectly pressurising employees to be vaccinated (such as with disciplinary action) are likely to result in claims and will be less successful, ultimately, than perhaps discussion, encouragement and education.

In some sectors though, such as health and care work, vaccination is of even greater importance so employers may consider a dismissal process as a last resort, especially if they are unable to find alternative work for individuals who refuse vaccination and other efforts at encouraging employees to be vaccinated are unsuccessful.

As with everything, ensure you seek professional advice before resulting to a dismissal.

Data protection and privacy

Medical information that an employee has received a vaccine will constitute special category data so employers who choose to keep records should do so in accordance with GDPR and the Data Protection Act 2018.

Finally

Asking employees (and potential employees) if they have had the vaccine

  • Employers can ask if employees have or have not been vaccinated but should have a good reason for needing to know, for example the safety of other employees.
  • This information is sensitive personal health data and employers need to comply with the data protection rules. If employees refuse to answer, problems can arise.
  • Asking about vaccination is probably a reasonable management instruction which means that employers can discipline employees who refuse to answer, but lawyers have different opinions on this and on taking disciplinary action against employees who haven’t been immunised.
  • Each case will depend on its own facts; for example employers should be able to justify asking health care professionals if they have been vaccinated, as they are much more likely to be exposed to COVID-19 and pass it to others. But employers with staff who have limited contact with other people at all will find it harder to justify. Employees who have been vaccinated could show their vaccination record card as proof.

Other issues

  • An employer’s vaccination policy is likely to be weakened if unvaccinated agency staff, contractors, visitors and other third parties are allowed into the workplace. Employers will need to consider whether visitors are encouraged to have been vaccinated too and how this is communicated to staff.
  • Employers with international offices will need to consider how a vaccination policy will be applied where other vaccination rollout programmes are in operation.
  • Differences of opinion are likely to arise both remotely and in the workplace with pro-vaccine staff and those more sceptical and refusing to have the vaccine. Employers should proactively intervene in such disputes and take steps to avoid potential conflict.

DISCLAIMER: The information in this guidance is provided for general information purposes and does not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information.  You are advised to seek relevant professional advice before taking any action.

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