Are you considering introducing a workplace vaccination policy? Have you even spoken to your employees about their coronavirus vaccines yet?

Maybe you’ve seen them post about having it on social media but chances are you haven’t had a conversation about it. A survey by BrightHR found that of 5000 employees asked, only 17% had been spoken to about a workplace vaccination policy for Covid.

There isn’t a mandatory requirement to have a vaccine, recording data about it for employees constitutes collecting sensitive personal data so there are special considerations under GDPR and staff may feel it an invasion of their privacy if you asked them.  Yep, we can see why you might have chosen not to bring the topic up!

With the expected end of ‘work from home if you can’ this month what will you be requiring your employees to do if they are returning to the workplace? Almost half of the employees asked said they think their employers will want proof they’ve had the vaccine and 60% of people would prefer to know their colleagues had received their vaccine before they went back to work.

So, is there a place for a workplace vaccine policy? Employers do have a responsibility for the health and safety of their staff while at work but after all this time of remote working are your employees in a position where they all need to turn up on 21 June or can your business have a slower, phased roadmap of its own?

Here are some things to think about before you implement a workplace coronavirus vaccine policy.

Can you make vaccinations mandatory for employees?

It is not a legal requirement for anyone to have a Covid vaccination, for the moment at least. The choice is very much that of the individual. While many people are happy to have a vaccine there are those that either can’t or don’t want to, so it is likely that without a strong justification, mandating it in your workplace would not be acceptable.

For a very small percentage of employers such as healthcare providers or employees in the care sector it may be considered to be a H&S requirement. Or if an employee’s role requires them to travel overseas where proof of a vaccine is required before entry, not having the vaccine would mean the employee is not capable of fulfilling their role.

Before implementing such a policy though you will need to carry out a full and robust risk assessment to justify your reasons for doing so.

Consider discrimination risks against existing employees or applicants who do not want to or can’t have the vaccine; you would need to be able justify the policy with a legitimate business need to prove it was necessary.

Watch this space however as the Equality & Human Rights Commission (EHRC) have just announced that they feel mandatory vaccinations in establishments such as hospitals and care home could be a reasonable approach.  They state “In legislating for mandatory vaccination the government is right to prioritise protection of the right to life for residents and staff.  In our view it is therefore reasonable to require care home staff to be vaccinated in order to work directly with older and disabled people, subject to some important safeguards to ensure the requirement remains proportionate and to minimise the risk of unlawful discrimination or breaches of care workers’ human rights.”  There would still be a need to ensure no one was unlawfully discriminated against and it is suggested there would be a system to ensure no one suffered financially if they had to take time off with side effects from having the jab.

Can you make having a vaccine a condition of a new role?

As above, there is a risk associated with this on the grounds of discrimination of protected characteristics. There may be a health, religious belief or even age-related reasons that an applicant who is perfectly capable to doing the job you are advertising hasn’t been vaccinated.

However, there are already cases of some care home operators implementing a “no jab no job” policy for new recruits.

What can you do if an employee refuses to have a vaccine?

You could potentially discipline and dismiss an employee for failing to follow reasonable requests made by the management.

Employees with over 2 years’ service may have a claim for unfair dismissal if they choose not to have a vaccine. Likewise, employees with protected characteristics that prevent them for having a vaccine may also have a case for an employment tribunal on the ground of discrimination.

As yet there is no case law to refer back to on this type of dismissal and it could very easily not go well.

If you have a fully justifiable reason for having a mandatory vaccination policy but also have employees who are unable to meet the requirements, it is wise to always in the first instance see if there another way to deal with it.

Are there any reasonable adjustments you could make? Will the continued use of PPE be effective? Could you carry on with remote working? Explore all the possibilities.

Do employees have to tell you their vaccination status?

If you are implementing a mandatory workplace vaccination policy you would expect your employees to tell you if they have had a vaccination or not. You would be collecting special category data and should carry out a data protection impact assessment before you start to make sure it is necessary and relevant for a specific purpose, if you have a good reason to collect the data the ICO has confirmed that you have lawful basis.  You must of course store it securely, consider who it is shared with and have a system for deleting it when no longer required.  You must also inform staff of how you handle this data.

If an employee refused to tell you their status it may be treated as a disciplinary issue; we’ve already mentioned the discrimination risks around this type of action.

Can you roll out a workplace vaccination programme?

Currently no, all vaccinations are via the NHS, there are no private schemes in place.

How quickly can a mandatory workplace vaccination policy be put in place?

We would strongly advise not rushing into this, it still a very contentious subject and the risks are high. Advice is not to do anything until at least autumn 2021 subject to the current rollout plan.  Planning to get it right should be your priority.

  • You may want to ask what is your justification for introducing a mandatory vaccine policy into your business?
  • How are you going to communicate and consult with your existing employees?
  • What will you do about existing employees who are exempt?
  • How will you deal with objections to the policy?
  • Does your business insurance cover you if you mandate a vaccination that has a serious or long-term reaction in an employee?

In the meantime, you can certainly actively encourage your employees to have a vaccine, you can offer paid time off to attend vaccine appointments, and you could provide full pay to employees who have a negative reaction to their vaccine and need time to recover.

If you want to discuss putting a vaccination policy in place for your business, then please get in touch and we will help you through the process.

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