Covid-19 vaccination guidance for employers
Since December 2020, when the NHS began administering coronavirus vaccines (Pfizer-BioNTech, Oxford AstraZeneca, Moderna), approximately 51 million people have received at least one dose of the vaccine (with 30 million having taken two doses and a booster). This leaves approximately 16 million of the population yet to receive the vaccine.
Vaccination is currently not mandatory for everyone in the UK, however, some employers can require it as a condition of employment or continuing employment. ACAS guidance on this issue is that it should only be mandatory if it is required for someone to do their job. For example, staff working in regulated nursing and care homes who are providing nursing or personal care, are now subject to the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 that came into force on 11 November 2021. This Act makes it a legal requirement for staff to be vaccinated as a condition of their deployment to work.
The government have announced, following further consultation, that this legislation will be extended to include all frontline staff in regulated healthcare provision. This includes all NHS and independent health care services. Staff must be vaccinated with COVID-19 vaccines (unless a medical exemption applies) as a condition of employment. It is expected that this will come into force from 1 April 2022, as such all staff will need to have had their first dose of vaccine by 3 February 2022 so they can be fully vaccinated by 1 April 2022.
Although the vaccine is discretionary for the general workforce, employers are encouraged by the UK government to support the COVID-19 vaccination programme. In fact, it is part of an employer’s responsibility to reduce workplace risk.
The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce workplace risks. This duty gives employers justification for encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace. COVID-19 is also a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR).
Most employees will welcome the opportunity to be vaccinated against COVID-19, but there will be some who will be reluctant or refuse to have the vaccine. Reasons for refusal can be varied, including individuals who can’t have the vaccine (on medical grounds), those who can have the vaccine but refuse (on religious grounds) and those who can have it but refuse to because of a fear/distrust of vaccinations.
The Equality Act protects employees against discrimination on the grounds of religion or beliefs and disability (medical condition or anxiety). A fear or point of view based on the information available may not be enough to establish the protected characteristic of religion.
If employees are not protected by discrimination laws, they may be protected if they have two years continued service. If so, they could bring an unfair dismissal claim if they are dismissed because of their refusal to get the vaccine and it would be for an employment tribunal to assess the reasonableness of the employer’s decision to dismiss. It is likely to be difficult to defend a decision to dismiss an employee for refusing a vaccine, especially outside healthcare sectors. In addition to the ordinary principles of fairness, the employment tribunal would also consider human rights arguments, including rights to privacy.
What can employers do to reduce workplace risk from COVID-19?
To avoid unfair dismissal and discrimination claims relating to vaccine refusal, employers should consider whether they can exempt individuals with certain religious or other belief-based objections or medical conditions by allowing the individuals to work from home if this is possible.
In addition, to counter workplace risks relating to the virus, employers can also:
- Share helpful information about vaccination. The UK Health Security Agency has provided an Employers Communication Toolkit for employers to download, use and share to help with conversations with employees.
- Post articles or blog posts on company platforms (i.e. newsletters, intranet, emails, portals) about the importance of COVID-19 vaccination, as well as how and where to get the vaccine in the local area.
- Show support for vaccination from senior leadership. Employers should consider using departmental ‘champions’ to promote vaccination and discuss concerns.
- Signpost employees to medical experts who are promoting the vaccine. The toolkit provides links to videos and webinars with experts and leaders that can be shared with employees.
- Facilitate workforce vaccination. Employers should consider allowing breaks in the day or time off to support vaccination appointments. Review sick leave policies and procedures and consider if they dis-incentivise employees from getting vaccinated.
Engagement through good communication will help employees understand the impact and risk of COVID-19 in the workplace and make informed decisions about vaccination. It will also satisfy employers’ health and safety duties in the workplace.
Disclosure of vaccination status
Information regarding vaccination status would be classed as special category data and should be processed only after a data protection impact assessment (DPIA) has been carried out. The DPIA would need to consider why such data is needed. Given that all employers must undertake a risk assessment and take measures to make their workplace COVID-19-secure, it is reasonable to think that most employers will have a legitimate reason to collect such data. However, employers should collect only the information required and hold it for no longer than necessary. Employees should also 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. Failure by employees to disclose their vaccination status to their employer, if legally required to be vaccinated, would need to be treated as a disciplinary matter.