Coronavirus vaccine and the workplace FAQs

‘No jab, no job’ is the policy that Pimlico Plumbers, a large London plumbing firm, has put in place to require all workers to be vaccinated against Covid-19.

The firm argues that the policy is to protect its staff and customers and is part of the company’s obligation under Health and Safety laws, however, employment lawyers advise that any employer who tries to make staff vaccination mandatory will likely face legal problems.

In this article, we explore the answers to some frequently asked questions that employers and HR professionals will likely encounter over the coming months.

1. How can employers encourage staff to have the vaccine?

Where employers want to encourage the Covid-19 vaccine, they should explain the reasons why and ensure that staff have access to reliable information about the vaccine so they are able to make an informed decision. Employers could also write a non-contractual policy explaining the benefits of having the vaccine and any arrangements for staff to be immunised.  The employer could show that having the vaccine is a way of mitigating the risk of Covid-19.

2. Are employees entitled to time off during working hours to get the vaccine?

There is no general statutory right to time off, either paid or unpaid, to attend medical appointments, however, most employers will want to encourage and enable staff to have the vaccine in support of a key step in returning to normalcy. Employers should also check the terms of the employment contracts and policies in relation to employee’s rights around medical appointments.

Members of staff who are classed as ‘clinically extremely vulnerable’ or ‘clinically vulnerable’ could be protected by the Equality Act 2010 where health issues amount to a disability under the Act. In such cases, employers should certainly make reasonable adjustments to allow employees time off for the vaccination.

3. Can employers demand staff who have been shielding to return to work after they have been vaccinated?

Employees who have been shielding and whose job could not be done from home, should not be forced back to work after receiving the vaccine. These employees are at the greatest risk of becoming seriously ill from Covid-19 and should therefore wait until they have been advised by the NHS that they no longer need to shield, following receipt of the vaccine. Therefore, where employers have arrangements in place with employees affected by this situation, for example, by way of homeworking, an alternative temporary role, furlough, etc. it would be safest to continue with the agreed solution until the ‘clinically vulnerable’ person has been advised it is safe to return to work.

4. What about members of staff who are not attending the workplace because they live with someone who is ‘clinically vulnerable’ – can employers insist they return to work after a ‘clinically vulnerable’ person has been vaccinated?

If an employee in this situation is reluctant to return to work, the employer should act reasonably and have a conversation with the employee, to understand what their concerns are and to undertake a risk assessment, based on the facts of each case. Employers who treat an employee detrimentally, for example, by disciplining or dismissing an employee for refusing to return to work in this situation may face claims for associative discrimination.

5. Is it a reasonable instruction to ask employees to have the vaccine?

This would need to be examined on a case-by-case basis and will depend on a number of factors such as whether or not the vaccine will help protect other employees or people they will encounter through their roles such as patients, school children, clients, service users etc.

People working in clinical settings or within the healthcare sector are more likely to be exposed to the virus and pass the infection to others. It would therefore be more likely to be a reasonable instruction for staff in these types of settings to have the vaccine. In cases where employees have little contact with other people, it’s much less likely to be reasonable, especially where there are other measures that can be put into place to protect them.

6. If the request for staff to be vaccinated is reasonable, how should employers approach refusals?

Employers should ensure that they understand the reasons behind any refusal. A member of staff who is advised not to have the vaccine due to health conditions will likely refuse to have the vaccine and this would obviously be reasonable. There is also concern amongst pregnant women and taking the vaccine – at the current time, the government advises that most low-risk women should wait until their pregnancy is completed before they are vaccinated.

Some employees may be against having the vaccine due to specific religious beliefs that are held by a minority of religious groups. Others may not agree to be vaccinated because it goes against a philosophical belief. In January 2020, an employment tribunal found ethical veganism to be classed as a philosophical belief under the Equality Act in the case Casamitjana v League Against Cruel Sports, and ethical vegans would hold concerns over having vaccines due to animal products which they often contain.

If your policy adversely affects people from a protected group under the Equality Act 2010 e.g. disability, sex, religion or belief, etc. you may be met with claims on the grounds of indirect discrimination and you will need to justify your position.

7. Can employers dismiss for failure to follow reasonable instructions to vaccinate?

Employers would have to be able to show that having the vaccine is a reasonable instruction for a dismissal to be fair. They would need to fully consider the reasons why the employee has refused the vaccine and give careful consideration to any alternatives to dismissal, for example, reallocating the employee to a position where they do not come into contact with many people or homeworking.

Legal advice should be sought before taking any action against an employee who refuses vaccination, given the fact-specific nature of these issues.

8. Can employers ask employees for proof of vaccination?

Medical information falls under special category data under the GDPR and as such requires more protection because it is sensitive. Employees have the right to refuse to disclose their medical data to their employer so employers would have to carefully consider why they need evidence of vaccination and whether it is appropriate for their business. A data protection assessment would need to be carried out to consider the reasons for requiring the data but also how it will be processed and held safely, who will have access to it and whether it is appropriate to hold more than a simple yes or no.

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