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Can employers require staff to receive COVID-19 vaccinations?
As the drift back to the workplace begins to gather pace, and health and safety considerations sit high on the agenda of employers, the issue of whether employees should be compelled to receive COVID-19 vaccinations or risk losing their jobs is a hot topic.
At present, only regulated care homes may legally require staff who aren’t medically exempt to be fully vaccinated before entering the workplace. So where does that leave other employers?
Can I impose a ‘no jab, no job’ policy on my staff?
This would not be advisable. Risks for an employer who does so include:
- Constructive unfair dismissal claims. An employee with two or more years’ service could argue that their employer unilaterally imposing a requirement that they must be fully vaccinated in order to work is a fundamental breach of their employment contract. This would entitle them to resign in response and claim that they have been unfairly dismissed.
- Discrimination claims. COVID-19 vaccination may not be suitable for some individuals who are recognised as disabled under equality law, such as those with a suppressed or compromised immune system. Secondly, some younger employees may not have been offered both doses of the vaccine yet. Thirdly, past vaccination research has revealed that certain minority ethnic groups were more hesitant to take up the vaccination offered. Thus, a ‘no jab, no job’ policy may disadvantage staff on the grounds of their disability, age, race, or other characteristics protected by equality laws, giving rise to discrimination claims.
- Bad press. Being one of the first UK employers to dismiss staff who refuse to be vaccinated against COVID-19 is likely to receive negative media attention.
- Damaged industrial relations. Staff may feel that they have had a medical procedure imposed on them which they would not have otherwise agreed to, potentially leading to reduced morale, difficulties retaining employees, and consequent recruitment and training costs.
So what should employers outside of the care home sector do?
Current guidance from the Advisory, Conciliation and Arbitration Service (ACAS) explains that it’s “best to support staff to get the [COVID-19] vaccine without forcing them to”.
UK employers are being urged by Public Health England to encourage their employees to get vaccinated against COVID-19. This might include informing employees about how the business will support employee vaccination, such as by allowing time off for staff to attend vaccination appointments, and sharing information about vaccination. Employers have implied duties to employees to take reasonable care of their health and safety, and to take reasonable steps to provide a safe workplace and system of work. Providing information about vaccination to employees to help them make an informed decision about whether to be vaccinated is consistent with these duties.
Employers may wish to introduce a vaccination policy which encourages employees to be vaccinated if possible, but also accepts that in some circumstances vaccination will not be appropriate.
It is worth noting that vaccination guidance is evolving rapidly. Employers would be well advised to monitor how information and any Government guidance develops, and keep their policies and measures updated accordingly.
How else can an employer reduce workplace COVID-19 risks?
Employers should continue to follow applicable Government guidance on how to lessen the risk of COVID-19 spreading at their workplace. Regular health and safety reviews can help keep an employer’s measures up to date and ensure that they are properly implemented.
An employer could consider introducing regular workplace COVID-19 testing, which can help identify COVID-19 in asymptomatic people.
It may also be appropriate to consider allowing an employee to work from home temporarily or permanently, to help minimise workplace risk.
If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team.