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Coronavirus vaccination - FAQs for employers

30 April 2021

Employers are facing many difficult and untested employment law issues as the UK rolls out its Covid-19 vaccination programme. These FAQs cover whether an employer can make vaccination compulsory for its employees, alternatives to a mandatory requirement, time off for vaccine appointments, dealing with vaccine objectors, data privacy concerns and other issues.

Key latest developments

  • The government is rolling out vaccinations to all adults in the UK and expects all adults to have been offered a first dose by the end of July.
  • The Joint Committee on Vaccination and Immunisation (JCVI) issued new advice for pregnant women on 16 April advising that vaccination is appropriate and recommended. Previously, vaccination was only recommended in pregnancy for women at a high risk of catching the virus or due to a pre-existing medical condition. 
  • On 14 April, the government launched a consultation on making vaccination compulsory for those working in care homes (allowing an exemption for those with a medical condition preventing vaccination). The government have expressed a desire to change the law quickly with the consultation closing on 21 May 2021. The government are continuing to review whether it may be necessary to extend any policy to other parts of the adult and social care sectors.
  • In its Spring 2021 Covid-19 Response, the government published its “roadmap” out of lockdown in England. The roadmap sees restrictions gradually lifting in a sequence of “steps” with indicative dates for each step but the flexibility to proceed more slowly if required. The vaccination programme is key to paving the way for restrictions to be lifted in line with the proposed timetable.
  • The government is exploring to what extent Covid-status certification could play a role in reopening the economy, reducing restrictions on social contact and improving safety. Covid status certification involves using testing or vaccination data to confirm that people have a lower risk of transmitting Covid-19 to others. The government’s review is considering whether Covid-status certificates could be used to enable access to settings or a relaxation of Covid-secure mitigations.

Mandating vaccination

Can we make it mandatory for existing employees to receive the Covid-19 vaccination?

Mandating vaccination for employees has never been tested in UK law. It may be possible for some employers to require the vaccine for all their existing employees. This is likely to be a minority of cases at the moment but the picture may change in future.

The key legal problems with mandating the vaccine are the risks associated with dismissing employees who refuse and have over two years’ service, and the potential for discrimination claims from employees with protected characteristics. Any employer proposing mandatory vaccination will therefore need to consider:

  • Whether it has a fair reason to dismiss employees who refuse vaccination but have more than two years’ service.
  • If an employer could show that having a vaccine is the most reasonably practicable way of mitigating the risk of Covid-19, having carried out a risk assessment, it could in theory mandate the vaccination as a health and safety requirement, to protect both the employee themselves and others around them. Employees who refuse the vaccine could potentially then be dismissed for a health and safety breach. This is most likely to apply in healthcare or other settings where Covid-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). However, the government is the largest employer in health and care settings and is not yet making the vaccination mandatory, so employers would need a strong reason for taking a different stance in their organisation.
  • Vaccines may also be needed for entry to some overseas locations. If the employee’s role involves travel to those locations, then the vaccine is likely to be a necessary job requirement and the employer is likely to have a fair reason for dismissing any such employee who refuses the vaccine.
  • Even if the vaccine cannot be said to be a travel or health and safety necessity in the particular workplace, some employers may also be able to establish that having a compulsory vaccination policy is nonetheless reasonable in the circumstances of their business or for certain employees. Although customer confidence could be improved if all staff are vaccinated, it’s unclear if this alone would be enough to establish fair dismissals. Employers may, however, be able to rely on wider reasons about the role expected to be played by the vaccine in protecting against infection and transmission and achieving herd immunity. This is currently an untested area. Making exceptions for medical or belief reasons. Not doing so could lead to discrimination claims from employees with protected characteristics (see the section on “Objections to vaccination” below) or potentially make it more difficult for an employer to justify the dismissal of an employee with more than two years’ service.
  • Whether there are any other discrimination risks. For example, mandating the vaccine before all adults have been offered the opportunity to be vaccinated would discriminate against younger employees. Mandating the vaccine could potentially also discriminate against BAME groups if it turns out that they are more likely to refuse vaccination. (Although at present it is far from clear that a vaccination policy would put any ethnic group at a disadvantage and the latest data suggests an increasing take-up of the vaccine within these groups). Where these discrimination risks are present, employers would need to be able to justify their policy by demonstrating that they have a legitimate aim (e.g. health and safety) and that mandating the vaccine was a proportionate means of achieving this.

Can we require all new starters to have received the vaccination as a condition of employment?

This is not without legal risks which would need to be evaluated, but less so than mandating vaccination for existing employees because there will be no risk of unfair dismissal claims from potential new recruits. They still, however, have the right not to be discriminated against because of protected characteristics. This means employers opting for this sort of recruitment policy will need to consider the following:

  • Should exceptions be made for employees with medical or belief reasons for not being vaccinated? (See “Objections to vaccination” below.)
  • How to deal with the issue that younger people in general cannot access the vaccine at the moment. One option is to introduce a requirement to accept the vaccine as soon as it is offered. Unless the vaccination programme is extended to under 18s then employers with employees in this category will need to consider the potentially ongoing discriminatory impact of a vaccine requirement on this cohort, and whether this could be justified (especially if the policy is not also being introduced for existing staff).
  • Could such a policy discriminate more generally, e.g. against groups who are demonstrated to be more vaccine hesitant and how might that be justified?
  • What is the follow-on impact on the ethnic/age make-up of the organisation?

If we are mandating the vaccine, can we discipline or dismiss employees who refuse it?

This depends on why the employee is refusing and whether they have at least two years’ continuous employment and so can claim unfair dismissal.

If the objection is related to protected characteristics such as disability or belief, it could be discrimination to discipline or dismiss the employee (see “Objections to vaccination” below). We expect most employers would make exceptions in these cases if this is in line with their risk assessment.

If the employee is not protected by discrimination laws, the key question is whether they have two years’ service. If so, they could bring an unfair dismissal claim if dismissed for vaccine refusal and it would then be for an Employment Tribunal (ET) to assess the reasonableness of the employer’s decision to dismiss in the light of the employee’s rationale for refusing the vaccine and the possible alternatives.. In addition to the ordinary principles of fairness, the ET would consider human rights arguments. The European Court of Human Rights has recently confirmed that a compulsory child immunisation programme in the Czech Republic was a justifiable interference with human rights, given the need to maintain herd immunity and protect individuals, including those who cannot be vaccinated and are therefore particularly vulnerable. This case concerned government rather than private sector employer policy, and governments are afforded a relatively wide margin of appreciation. It also concerned “tried and tested” vaccines (such as the vaccine against polio). In addition, the penalty for not being vaccinated was relatively limited, in that parents received a small fine and the child was not allowed to attend preschool, but could then go to school as normal. The same principles would not automatically apply to an employer’s Covid-19 vaccine policy. It is, however, a potentially helpful decision for employers who wish to mandate the vaccine as it supports the argument that a compulsory vaccination policy does not necessarily amount to an unlawful violation of human rights.

Before going as far as to dismiss an employee, employers would need to consider options short of dismissal. These might include allowing an exception, redeployment to another role, implementing other safety measures (such as testing or PPE) or potentially keeping the employee working from home (if possible). Whether these alternatives are reasonable and sustainable may depend on the circumstances at the time (see “Testing and other measures as alternatives to vaccination” below).

If we are mandating the vaccine, what if an employee won’t tell us their vaccination status?

If mandating vaccination, employers will need to ask employees to disclose their vaccination status. This information would be classed as special category data and should only be processed after a data protection impact assessment (DPIA) has been carried out. (We explore this issue in more detail below under “Can we require employees to inform us of their vaccination status?”.)

A failure by an employee to disclose their vaccination status to the employer would need to be treated as a disciplinary matter.

What about contractors, agency workers and visitors to our premises?

Where contractors and agency workers work alongside employees, it will be very difficult to show any substantial reason for a difference in treatment. Contractors and agency workers are also protected under discrimination law, so the same considerations should apply, but they will have no right to claim unfair dismissal so the legal risks of a mandatory policy are significantly reduced. With visitors, it may be easier to point to key differences - for example, they may only be allowed to access one part of an office area where no employees are based and strict Covid safety measures are in place.

What should we be thinking about if we want to mandate the vaccination?

  • Timing – it is unrealistic for most businesses to consider enforcing a mandatory policy until Autumn 2021 at the very earliest, subject to the progress of the vaccine roll out (including second doses).Some businesses may wish to act now to mandate that employees accept the vaccine when offered to them, in particular in new starter contracts (see above) whereas others may prefer to wait. The outcome of the government’s review into Covid-status certificates is expected in June, and some employers may wish to wait for this.
  • Messaging – this will be different for every business according to its own culture. Some businesses may prefer to set out the stance they expect they will be taking now as a method of encouraging employees to accept vaccination when offered, others may prefer to adopt a policy of encouragement and paid time off to attend vaccination and wait to analyse whether there is a take up problem in their workforce before considering mandating.
  • Exploring alternatives: Employers may wish to use this time to explore what alternatives there are to mandating vaccination and trial different approaches to reduce the number of unvaccinated employees e.g. offering incentives to vaccination and putting together an objective positive messaging campaign. Workplace testing schemes may also be an appropriate alternative to vaccination for some employees.
  • Establishing rationale and evidence base for mandating vaccination: The evidence about the role played by the Covid-19 vaccine in preventing both infection and transmission is relatively limited now but is expected to become stronger in time. Employers should also think about evidence of why alternatives are not reasonable or sustainable.
  • Workforce impact and exceptions: Employers should consider exceptions for employees who cannot accept the vaccine due to medical or belief reasons (see below). Employers should also consider completing an equality impact assessment to explore whether mandating the vaccine puts any protected group at a disadvantage. If it does, the policy may need to be justified irrespective of the reasons why it is putting that group at a disadvantage or there is the extra risk of successful claims from those in that protected group. In any case, it may impact on the diversity of the workplace which should be carefully considered.
  • Consultation: This will help establish the reasonableness of the employer’s approach.

What process should we follow if we want to mandate the vaccine for our existing employees?

There are broadly two options and the best option will vary by employer.

1. Issue an instruction to accept vaccination with a failure to comply resulting in potential dismissal.

This approach is likely to be more successful if the instruction clearly fits within the wording of existing contracts and policies, and if those contracts and policies already make it clear that employees could be disciplined or dismissed for not complying with instructions of this sort.

2. Insert a new contractual term into contracts, with a failure to agree the new term resulting in potential dismissal

This approach will involve a process of changing terms across the workforce and may trigger collective consultation obligations. It puts the vaccination requirement on a longer-term contractual basis but can cause issues with employees who are happy to accept vaccination but oppose its inclusion in their contract. What alternative options are there to mandating vaccination?

What alternative options are there to mandating vaccination?

Can we strongly encourage employees to accept vaccination?

Yes.

Across all settings, employers are obliged under the Health and Safety at Work Act 1974 to take reasonable steps to reduce any workplace risks. Encouraging uptake of the vaccination among employees to protect themselves and everyone else at the workplace is one way to reduce the risks.

Should we have a vaccination policy?

Yes, if you are offering incentives for employees to take up the vaccine (see below) or (unusually) mandating it. You would then use the policy to explain and communicate your approach, along with the terms of any incentives offered. For the majority of employers, a vaccination policy will not be so important, but you may nonetheless find it helpful to explain the organisation’s stance on vaccination and your objective that as many employees are vaccinated as possible.

A vaccination policy may also help with handling workplace disputes regarding vaccination. You could consider requesting employees not to ask each other about their vaccination status, with a failure to comply being treated as a disciplinary matter. Similarly, employees who are spreading untrue vaccination myths could also face a disciplinary process outlined in the policy.

Can we offer incentives for employees to accept vaccination?

Potentially, yes. Offering incentives to encourage vaccine take-up is a commonly discussed approach in the United States, but it remains to be seen if it becomes common practice in the UK where general take-up of the vaccine is currently high and incentives may not be needed.

Incentives could be vouchers, cash or simply allowing an employee paid time off to attend their vaccination appointment (see further below). 

If there is low take-up in a workplace, we recommend that employers first try promoting the benefits of vaccination (for both employees and wider population) before turning to incentives. If uptake remains low, offering incentives is a less risky approach than mandating vaccination, but the concept is not properly tested under UK law and would still involve a degree of risk.

Employers opting for incentives would need to consider their approach to employees with protected characteristics (e.g. disability or belief) who cannot receive the vaccination. It may be possible to justify offering incentives only to employees who have been vaccinated as a proportionate means of meeting legitimate health and safety aims.

Can we pay for employees to receive the covid-19 vaccination privately?

This is not currently an option as the vaccine is not commercially available and it appears unlikely it will become available to purchase for some time.

Employers requiring mandatory vaccination would be required to fund the vaccination for employees once available. There is some suggestion that a Covid-19 vaccination may be required annually, like the flu vaccination. In this case, employers should consider budgeting on the basis that vaccination will be an ongoing annual cost.

This would not be a taxable benefit if the cost does not exceed £50 and, to date, none of the widely used vaccinations cross this threshold. It is possible that, if the cost exceeds this, the government will provide for an exemption.

Can we manage our return to the office based on who has been vaccinated?

Potentially, yes. Some employers with workforces who can work from home are considering opening up the office on a phased basis to those who have been vaccinated. It is currently unclear if this will be in line with government guidance, which remains that everyone who can work from home should do so.

Employers would also need to consider when it would be appropriate to introduce such a requirement, given that most of the younger adult population will not receive a first dose until the end of July. Introducing this policy before all adults have been offered a vaccination would be indirectly discriminatory against younger employees who want to return as soon as possible but are being kept at home. A return-to-office policy based on vaccine status could also discriminate against employees with other protected characteristics (e.g. disability or belief). Employers could potentially defend such a policy as objectively justifiable, but this will involve considering any discriminatory impact alongside their risk assessments to determine if a policy of only allowing vaccinated individuals into the office is reasonable and proportionate. This analysis is likely to change over time.

If an employer mandates (as opposed to merely permitting) the return of vaccinated employees, this could also cause issues with employees who have been vaccinated but are unwilling to come back. This will raise similar legal issues to those dealt with in our FAQs on staffing decisions. Employers will need to take particular care in relation to employees with disabilities, for whom remaining on a homeworking arrangement might be a reasonable adjustment.

Can we require employees to inform us of their vaccination status?

Probably, but this will depend on what role vaccination status plays in the employer’s risk assessment. The ICO has now updated their advice to organisations who are collecting vaccination status data confirming that collection of this data must be necessary and relevant for a specific purpose. However, it confirms that if there is a good reason for collecting the information, there is a lawful basis to process the data.

Before processing any data regarding vaccination status, all employers would need to carry out a data protection impact assessment (DPIA) as this would be classed as special category data. The DPIA would need to consider why such data is needed. Given all employers are required to undertake a risk assessment and take measures to make their workplace Covid-secure, it is reasonable to think that most employers operating workplaces will have a legitimate reason to collect such data, certainly in the short term. However, the ICO warn that keeping vaccination status data for monitoring purposes only would be more difficult to justify.

Employers should nonetheless only collect the limited information required and hold it for no longer than necessary. Employees should be told why the information is needed, how it will be stored, how long it will be retained and who will be able to access it. The situation should be kept under continuous review - if for example herd immunity were to be established, there would be no reason to maintain a vaccination register.

Testing and other measures as alternatives to vaccination

The government’s review into Covid-status certification is currently exploring whether confirmation of vaccine or testing status could be used to enable access to settings or a relaxation of Covid-secure mitigations, suggesting that a recent negative test could be classed as equivalent to vaccination for some purposes. With the rollout and increasing accuracy of lateral flow testing, regular testing could become widespread before all adults are fully vaccinated and could continue for some time afterwards. The government is currently encouraging employers to adopt workplace testing programmes and is providing free test kits. It is possible that employees who do not wish to take the vaccine (or are advised against doing so) may propose testing as an alternative, especially if the employer is already running a testing programme. For more information about testing, see Workplace testing – FAQs for employers.

Various Covid safety measures such as social distancing, mask wearing and hand sanitising are not currently alternatives to vaccination (they are still in place for everyone, irrespective of vaccination status) but it is possible that this will change over time. The government has committed to review the need for social distancing and other measures ahead of Step 4 in its roadmap out of lockdown (pencilled in for 21 June) and may conclude that these safety measures no longer need to be adopted by everyone. At that point, there may be questions about whether such measures (which can be difficult for business) can or should be adopted by employees who are not vaccinated.

Objections to vaccination

What is the situation where employees refuse vaccination on medical advice?

Currently, the only publicised recommendation to avoid vaccination on medical grounds is for those who have had a serious allergic reaction to any of the vaccine ingredients. However, some individuals with disabilities may need to consult with their own doctors and receive different advice. If such employees are disabled for the purposes of the Equality Act 2010 (EqA), their choice not to get vaccinated could be “something arising” from that disability. This would mean that any less favourable treatment of such employees because they are not vaccinated would be discriminatory, unless objectively justified.

Care should also be taken where individuals have received medical advice to avoid specific vaccines in favour of others e.g. pregnant women are advised to receive the Pfizer or Moderna vaccine or people with a history of blood clotting problems are advised to avoid the AstraZeneca vaccine. There may be a delay in these individuals receiving vaccination due to appointments being rearranged or potential supply issues. There may or may not be a protected characteristic, such as disability, present in such cases.

What if employees have a needle phobia?

This phobia is surprisingly common. Most individuals with such a phobia would probably struggle to bring themselves within the protected characteristic of disability for EqA purposes. The definition requires a physical or mental impairment that has a substantial and long-term negative effect on an individual’s ability to do normal daily activities. These are defined in the Equality and Human Rights Commission Code of Practice as “activities which are carried out by most men or women on a fairly regular and frequent basis”. It may be difficult to argue that receiving jabs is a normal day-to-day activity.

Nonetheless, it is possible that someone suffering with severe needle phobia could experience an extreme anxiety episode triggered by the prospect of vaccination, which might result in a disability under the EqA. It may be that the NHS will provide support or treatment to help affected individuals get through the process of receiving the vaccination.

What about pregnant employees?

As of 16 April, the advice for pregnant women has changed and vaccination is now recommended, albeit with a specific vaccination such as Pfizer or Moderna. This is a significant change from the previous advice which was that routine vaccination should not be offered to pregnant women (unless at high risk of contracting the virus or vulnerable to complications due to pre-existing medical conditions).

However, despite the change in official guidance, some women may be hesitant about accepting vaccination given the change in official advice is based on data from 90,000 cases in the US. Whilst the risk of an indirect discrimination claim has been greatly reduced by the change in guidance, there is still a potential for a woman to argue that there is less evidence available for them to base a decision to accept vaccination. Whether a Tribunal would accept this argument in practice remains to be seen.

Depending on their risk appetite, employers should consider if they want to make exceptions for employees who fall within this category. Requiring employees who are able to work from home to continue doing so may be the easiest action to take. Pregnant individuals remain classed as clinically vulnerable. Even if vaccinated, given protection is not 100% guaranteed, employers should take great care before requiring them to move out of the safest on-site roles or to return to the workplace if they are homeworking. Employers are required to undertake specific risk assessments for pregnant employees and may need to temporarily alter their working conditions or hours, provide suitable alternative work on the same terms and conditions or (as a last resort) suspend them on full pay. For further discussion of risk assessment and pregnant workers, see our FAQS on staffing decisions when reopening workplaces.

What is the position on employees who refuse vaccination because of their religion or belief?

The EqA protects employees against discrimination on grounds of religion or belief. While a small number of religious groups disapprove of vaccinations, most religions do not disagree with vaccination in principle. There had been some concern over what ingredients or stabilisers were used in the production of Covid-19 vaccines, but none of those that have been rolled out in the UK to date contain any animal-derived ingredients (or egg). Many religious leaders have urged their followers to accept vaccination.

Vegans may disagree with vaccinations on the basis that they will inevitably have been tested on animals. Ethical veganism has previously been found by an ET to amount to a belief, capable of being protected under the EqA. Some ethical vegans may therefore refuse vaccination, although not all animal rights organisations are against vaccination in principle. (For example, the US-based organisation People for the Ethical Treatment of Animals states that refusing medicine tested on animals will not spare any animals the same fate in the future and encourages campaigning for a change in the law rather than failing to follow health advice.)

While there will be some individuals with protected beliefs against vaccination, the latest announcement on vaccine ingredients combined with religious leaders and campaigning groups advocating for vaccination means that the likelihood of valid belief-based objections is now significantly reduced and will not be a consideration for most employers.

As with employees who are advised against vaccination on medical grounds, employers will need to consider what steps to take with employees who genuinely object on the basis of religion or belief. This will depend on their risk assessments and overall policy approach. For example, if the employer is operating a mandatory vaccination policy, it will need to consider whether it can exempt individuals with certain religion or belief-based objections or require/allow homeworking if this is possible. Other options, such as not recruiting the individual or dismissing them, may be difficult to justify as proportionate.

Employers should be careful not to judge or stereotype employees. Just because an employee is part of a religious group or an ethical vegan does not automatically mean they will refuse to be vaccinated, so this should not be assumed. Equally, employers should not assume that the reason for someone’s refusal is what the employer perceives their religion to be.

Finally, employers should note that some Muslims may choose not to take the vaccine during daylight hours in Ramadan. The British Islamic Medical Association has published guidance that taking the vaccine would not invalidate the fast but nonetheless it has been reported that certain urban centres may increase evening-time vaccination slots to mitigate any potential drop-off in vaccine uptake.

What about “anti-vaxxers”?

It is not outside the realms of possibility that an anti-vaccination belief could be protected by itself, but we consider this is highly unlikely - as discussed in our earlier article on Covid-19 vaccination. In order to qualify for protection, the belief must meet several tests, such as it being worthy of respect in a democratic society and attaining a certain level of cogency and cohesion. There are a wide range of different reasons people may have for holding anti-vaccination views. It was for this reason that an ET previously decided that vegetarianism was not a philosophical belief.

A more specific belief against vaccinations may be protected if the individual can explain it as part of a cohesive and serious conviction, rather than a point of view based on the present state of information available, although this will be difficult to prove.

What if employees do not want to be vaccinated because of the risk of blood clots?

This is currently an issue with certain specific vaccines, in particular the AstraZeneca vaccine. It is important to stress that employers cannot force employees to be vaccinated against their wishes, so if an employee decides not to be vaccinated because of the risk of rare blood clots then their employer is not in a position to compel them, and can only point them towards current NHS guidance and advice. For employers who intend to mandate the vaccine, the key question is whether they can establish a strong enough reason to justify the dismissal of such an employee if they have more than two years’ service (an issue which is untested but explored above). If the employee’s concerns relate to a medical condition or history then they may be disabled under the EqA, which would result in them having additional rights not to be discriminated against, but in those circumstances the individual is likely to be offered an alternative vaccination.

What if employees are hesitant about vaccination based on other reasons?

Some employees may cite a variety of other reasons for their decision not to get vaccinated, potentially based on information they have read online. These individuals will not typically be protected under discrimination law as these types of reasons will not fall within the ambit of the EqA. However, they would still have unfair dismissal rights (including constructive dismissal) if they have over two years’ service. Employers should therefore tread carefully before taking any action that could breach the mutual duty of trust and confidence or deciding to dismiss an employee.

For employees who are citing possible “fake news”, the CIPD guidance has some useful suggestions on how employers can play a role in promoting a persuasive case for vaccination and counteracting misinformation.

Some employees may refuse vaccination as they may either believe or know that they have already had Covid-19, but the official medical advice remains that even those individuals who have had the virus should be vaccinated. This is because reinfection is possible and it is not yet known affirmatively how long any “natural” immunity acquired from having the infection lasts.

Time off for vaccination

Do we have to allow employees time off during working hours to receive a vaccination?

There is no general right in law for an employee to have time off for medical appointments, but we expect most employers will allow time off for Covid vaccinations and there are many cogent reasons to do so:

  • Contracts and policies may include rights around attending medical appointments.
  • Employees who are clinically vulnerable may be classed as disabled under the EqA and allowing time off for vaccination could be regarded as a reasonable adjustment.
  • Employers have a legal obligation to provide a safe place of work and minimise risks for all employees. This could include enabling vaccination to take place.
  • An unreasonable refusal to allow time off for vaccination amid a global pandemic could be a breach of trust and confidence, which could prompt constructive dismissal claims.
  • Employment law issues aside, there could be negative PR implications from refusing to allow staff to attend vaccination appointments.

There is no legal requirement for employees to be paid for time off, although there are calls for this right to be introduced. In practice, many employers will allow paid time off for medical appointments. Some employers may wish to offer paid time off as an incentive (see above).

Can we ask employees to change their appointment to a more convenient time?

Wherever possible, we would recommend that employers allow employees to attend their vaccination at the time slot they have been allocated. Asking employees to reschedule their appointments outside of working hours may reflect badly on the employer, given the administrative burden on the NHS of having to rearrange appointments.

If, however, an employer has a valid reason not to allow an employee to attend their designated slot, it may be possible to ask the employee to reschedule the appointment - for example, if they do shift work that cannot be covered by anyone else or work on a site away from home. If employees are offered a choice of appointment times, it would be reasonable for the employer to ask them to choose a time that minimises disruption to the business.

What if the employee feels unwell after getting the vaccine?

Some employees may experience mild side effects after the vaccine, such as headache or feeling sick. If an employee is so unwell that they are unable to work then they would be entitled to sick leave. Acas guidance recommends paying full pay in these circumstances and adjusting any trigger levels in attendance management policies so that this type of short absence for side effects does not count towards the trigger. This is to ensure that employees are not deterred from getting vaccinated by the prospect of having to work if they experience side effects. Statutory sick pay would not generally be payable since the total period of incapacity is unlikely to be as long as four days (see our FAQs  on sickness absence and sick pay during the pandemic).

Other vaccination issues for employers

How should we deal with disputes between colleagues over vaccination?

This could become a tricky area for HR professionals in future. For instance, there could be situations in which employees are uncomfortable working alongside other colleagues who have decided not to get vaccinated, and make their discomfort known. Or employees may spread misinformation about the vaccine and encourage colleagues not to get vaccinated.

These situations could become especially fraught if they involve characteristics that are protected under the EqA - for example, if an employee is inappropriately grilled on how their decision about vaccination fits with their beliefs, or if an employee with a vulnerable disabled child at home accuses colleagues of being irresponsible for not taking up the vaccine. As with other issues around clashes of rights in the workplace, this would require careful handling. Employers may need to remind employees to be sensitive and aware of the diversity of opinion that is likely to exist within the workplace.

Can we be liable for serious or long-term side effects of vaccination?

This may be a concern for employers who are mandating the vaccine or, in future, providing the vaccine (as and when it becomes commercially available). Such employers are unlikely to face liability for long-term or serious side effects of an approved vaccine unless they could somehow be found to have acted negligently. Employers typically provide flu jabs without these concerns arising.

Nonetheless, employers who plan to mandate the vaccine at an early stage should raise this question with their insurers. Note also that the Covid-19 vaccination has been added to the government’s Vaccine damage payment scheme.

 

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