More than 12 million people in the UK have now had at least one dose of a Covid-19 vaccine. This comes as much welcomed news for many employers who, after having to move to remote working or furloughing staff, are keen to get their employees back into the workplace. However, employers cannot presume that their staff will want a Covid-19 vaccine. Requiring employees to be vaccinated raises a number of issues around both employee’s rights and workplace health and safety regulations. We discuss below.
Can an employers legally make their staff have the Covid-19 vaccine?
In England and Wales, the Public Health (Control of Disease) Act 1984 gives the government powers to prevent, control or mitigate the spread of a contamination. However, it explicitly prevents a person from being required to undertake medical treatment. This includes vaccinations. So currently the UK Government, or employers cannot make the Covid-19 vaccination mandatory.
Can an employers encourage their staff to have the Covid-19 vaccine?
The Health and Safety at Work Act 1974 (HSWA) requires employers to take reasonable steps to reduce any workplace risks. Under the Act, employees also have a duty to cooperate with their employer to reduce workplace risks. As Covid-19 is a risk to most business and their employees, the employers should at the very least be encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace.
Does not having the Covid-19 vaccine breach workplace Health and Safety regulations?
Now that the Covid-19 vaccine is becoming more widely available, most employers should update their risk assessments and Health and Safety polices to reflect this.
If someone works with vulnerable people e.g. in a nursing home or hospital, if their employer carried out a risk assessment and concluded that having a vaccine is the most reasonably way of controlling the risk of Covid-19 in the workplace then, in theory, they could order the vaccination as a health and safety requirement. If an employee refused to have a Covid-19 vaccine, then this could be breaching the health and safety policy.
Can my employer check to see if I have had a Covid-19 vaccination?
If an employer requires their staff to be vaccinated, they would have to carefully consider if they would need to see evidence of the vaccination. Doing so will require a data protection impact assessment which must consider not only the reasons for requiring the data but also issues like how it will be held securely and who it is shared with. The employer would also need access medical history data to do this.
The Information Chief Commissioner’s (ICO) state that employee’s health information is special category personal data. It is imperative that employers ensure that they handle this data carefully, and only collect data that is necessary.
What happens if I cannot have the Covid-19 vaccine because of a medical reason?
A very small number of people who are at risk of Covid-19 cannot have the vaccine, this includes people who have severe allergies. Like all new medicines the vaccines have not yet been tested on pregnant women, so employees that are pregnant may also not have the Covid-19 vaccine.
Any differentiation in treatment between those who have or haven’t been vaccinated may amount to indirect discrimination. If an individual chooses not to have the vaccine based on their religious or social beliefs, then like medical reasons, employers should avoid discriminating them.
Can my employer put other measures in place to stop the spread of Covid-19?
Businesses with more than 50 employees are now able to access lateral flow tests, which can produce results in less than 30 minutes. Regular testing alongside side strict social distancing measures and shielding for those at risk will slow down the spread of Covid-19.
Although having the vaccine may be the most obvious weapon in the fight against Covid-19, employers should ensure other measures are taken to help stop the spread in the workplace. Read more guidance on Covid-19 for employers here.
Employers should also be mindful of managing mental health issues at work and the effect the vaccination programme may have on their employees. Read our guide, Managing Mental Health Issues at Work here.
In summary, the Covid-19 vaccination programme has only just begun so there are many questions that need to be considered in the light of the circumstance.
If an employer intends to make the Covid-19 vaccine mandatory as part of their plan to reduce risks, it will be open to discrimination claims and will need to consider whether there are reasonable alternatives. A proper risk assessment should be carried out with the input of legal professionals.
Jefferies are here for you
Whether you are an employer or employee, for any concerns regarding vaccination or Covid-19 employment polices, get in touch with our employment team on 01702 332 311 or email employment@jefferieslaw.co.uk
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.