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Global HR Lawyers

Coronavirus vaccination - FAQs for employers

06 April 2022

On 21 February the government launched its “Living with Covid” strategy”. As a result of this, many of the Covid measures in England have changed significantly with implications for employers wishing to adopt a particular stance on vaccination.

Key latest developments

  • The government has announced that (subject to consultation and Parliamentary approval) the legal requirement for all frontline health workers in England to be fully vaccinated will be removed. Mandatory vaccination for health workers was due to take effect on 1 April 2022.

What does the ‘Living with Covid’ strategy mean for employer’s vaccination strategies?

The government hailed the success of the vaccination programme as the reason it was able to move to the new ‘Living with Covid’ strategy. Moving forwards, however, it is unclear to what extent employers will be able to have a say in, or even knowledge of, their workforce’s vaccination status. This is because employers previously justified collecting vaccination status, differential treatment and encouraging, or in some cases, mandating vaccination for their workforce on the basis of Covid measures which will be or have already been withdrawn. .

Employers will need to carefully consider reviewing any vaccination policy or differential treatment according to status that has been imposed to date seeing as:

  • The previous requirement for unvaccinated individuals to self-isolate if identified as a close contact is no longer applicable.
  • The NHS Covid pass, which allowed individuals to evidence their Covid status (either through vaccination or a recent negative test result), is no longer recommended for use post 1 April 2022. It will still operate ‘for a limited period’ to allow status to be evidenced for international travel.
  • Universal free Covid testing has now ended. Employers no longer have to explicitly consider Covid in their health and safety risk assessments and the sector-specific working safely during coronavirus guidelines have been replaced with new workplace public health guidance.

The wider public health context has also changed significantly, with the proportion of people falling seriously ill or dying from Covid having thankfully fallen substantially. Arguably the “balance of risk” has changed.

It may well be timely for employers to consider whether their vaccination policies remain appropriate or justified. For those still considering mandating vaccination, we consider the key issues below.

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.

Vaccination policies

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 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 remains a key way to reduce the risks of infection in the workplace.

Public Health England has issued guidance for employers explaining why employers should encourage vaccination and offering some guidance on how to do so.

Can we offer incentives for employees to accept vaccination?

Potentially, yes. Although of course the vaccination roll out commenced over a year ago, and views are likely to by now quite entrenched. The benefit of incentives may therefore be limited.

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, 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 but it appears that this will be a possibility in the future, 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. Employers requiring mandatory vaccination would be required to fund the vaccination for employees once available.

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.

Mandating vaccination

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

It may be possible for some employers to require the vaccine for all their existing employees but to date there are few examples of this being tested in UK law. This is likely to be an increasingly difficult position for employers to take.

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.

Whilst the government previously legislated for mandatory vaccination for care home workers and planned the same for frontline health workers this has now been revoked. This is ostensibly because the population is now better protected against hospitalisation from Covid-19, and because the now dominant Omicron variant is less severe. As such, the mandatory vaccination strategy for the wider health and social-care setting was no longer deemed proportionate. The emphasis now is on individuals in such roles getting vaccinated as a matter of professional responsibility.

This assessment of the balance of risk at this stage in the pandemic is certainly relevant to employers in other sectors who may be considering mandatory vaccination.

Employers who are proposing mandatory vaccination will need to consider:

  • Whether they have 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 lower severity of the Omicron variant and, the removal of the legal requirement for health and social care workers to be vaccinated, is likely to make it more difficult for employers to show why mandatory vaccination is necessary in their workplace.
  • Vaccines may also be needed for entry to some overseas locations. If the employee’s role involves travel to those locations, then the vaccine (including boosters) 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. Employers may be able to rely on wider reasons about the role played by the vaccine in protecting society more generally, but 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.

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

This is less risky 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, for example, making exceptions for employees with medical or belief reasons for not being vaccinated (see “Objections to vaccination” below).

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).

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 addition to the ordinary principles of fairness, the ET would consider human rights arguments: whether the interference with the employee’s right to privacy was proportionate.

As noted above, the lower severity of the Omicron variant and the removal of the legal requirement for health and social care workers to be vaccinated may make it more difficult for employers to successfully argue this.

The first ET decision regarding vaccination found that a care home worker was fairly dismissed for refusing the covid vaccine (before mandatory vaccination was announced) and also that this was justified on a human rights basis. The decision was particularly fact specific; it was a setting which could easily justify mandatory vaccination due to the vulnerability of residents and the employer was subject to an insurance policy which required staff to be vaccinated. But employers should be wary of relying on this case as evidence that a mandatory vaccination policy will justify dismissal, particularly in today’s significantly different circumstances.

Before going as far as to dismiss an employee, employers must consider options short of dismissal. These might include allowing an exception, redeployment to another role, or potentially keeping the employee working from home (if possible). ETs may now expect that measures such as regular lateral flow testing, evidence of natural immunity, or mask wearing could or should be deployed as alternatives for employees who refuse vaccination in circumstances. When the government recommended organisations use the NHS Covid pass, it allowed a recent negative test as an alternative to full vaccination, so an employer would need to justify why this is not an acceptable alternative in their own workplace and, after 1 April, consider paying for lateral flow tests.

Objections to vaccination

If you are considering requiring vaccination – either for existing or new employees – it will be critical to consider carefully on a case by case basis any objections that are raised.

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

There are limited circumstances in which individuals may be advised to avoid vaccination on medical grounds. If such employees are disabled for the purposes of the Equality Act 2010 (EqA), their decision 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.

What about pregnant employees?

Vaccination for pregnant women is now clearly recommended Nevertheless, women may still be hesitant about accepting vaccination when pregnant, so employers who are mandating vaccination should consider making an exceptions for employees who fall within this category. By way of comparison, when mandatory vaccination was required for care home workers, the government did allowed pregnant women a medical exemption lasting until 16 weeks after the birth of their baby.

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).

Some ethical 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.

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.

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. Equally, employers should not assume that the reason for someone’s refusal is what the employer perceives their religion to be.

What about “anti-vaxxers”?

It is not outside the realms of possibility that an anti-vaccination belief could be protected as a philosophical belief. We consider this is unlikely - as discussed in our earlier article on Covid-19 vaccination – although not impossible.

A 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.

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”, this 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 how long any “natural” immunity acquired from having the infection lasts.

Vaccination status

Can we ask employees to share details about their vaccination status?

Yes, potentially, but you would be collecting special category health data so there are data protection issues to consider.

The Information Commissioner’s Office (ICO) has published updated guidance to assist organisations and employers to comply with their data protection obligations in light of the relaxation of the Covid rules on 1 April.

This recommends that now is the time to review measures put in place during the pandemic to ensure the personal data being collected is still necessary. This would apply to measures put in place relating to the collection of vaccination status data.

Collection of this data must be necessary and relevant for a specific purpose, and the guidance indicates that there must be a compelling reason for doing this – it should not be on a ‘just in case’ basis.

Employers may be aware that the data protection regulator in Ireland has taken a contrasting approach, advising that there is no legal basis for collecting vaccination data under the GDPR. The ICO, however, has not changed its guidance in the light of the Irish view and it therefore remains open for UK employers to justify asking employees to share details of their vaccination status.

If you want to collect information about vaccination status you will nonetheless need a legal basis for doing so. The safest legal bases will be compliance with your legal obligations and “substantial public interest”. This means that preventing the spread of the virus and complying with your duty of care to employees need to be at the root of your justification rather than, for example, customer or staff preference or boosting confidence. Given that many of the Covid regulations have been revoked, the ICO notes that if employers have relied on a specific piece of legislation in order to use ‘legal obligation’ as a lawful basis for processing, they will now need to identify another lawful basis for processing the data.

Asking employees to tell you about their vaccination status is less risky than insisting that they do so, because individuals who are happy to share the information are less likely to make a data protection complaint and the ICO would be more likely to regard your policy as proportionate if there is no mandatory element to it. It may therefore be sensible to start by asking if employees will volunteer this information before you move to insisting upon it.

When collecting data about vaccination status, you need to make sure that you comply with general data protection obligations.

How do we comply with data protection law when handling details of vaccination status?

Before processing large volumes of 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 and whether you have a sufficient legal basis for collecting it., The safest legal reasons will be compliance with your legal obligations and “substantial public interest”. The ICO warn that keeping vaccination status data for monitoring purposes only would be more difficult to justify. Equally, keeping vaccination status data for customer preference reasons will be harder to justify.

Employers should 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.

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