Covid19 Autumn/Winter 2021 Response Published – what are the considerations for employers?

The government has published its ‘Covid-19 Response – Autumn and Winter Plan 2021’ which sets out how it intends to respond to Coronavirus over the next few months.

The document outlines ‘Plan A’ as a best-case scenario in which the NHS and wider economy can continue to operate as it is now, with limited changes to the current restrictions or guidance, and with a focus on vaccinations and contact tracing to keep on top of the virus.  There is also a ‘Plan B’ which will be implemented if the situation worsens – for example, if there is a significant rise in cases or deaths, an increase in cases of flu, or the emergence of a new variant of concern.

The publication of this document once again raises important issues which employers will need to keep under consideration in the coming months.  These include:

1. Continuing to encourage and promote vaccinations

At the time of writing, 81% of the adult population of the UK have had both doses of a Coronavirus vaccine.  Those aged over 50, under 50 with a health condition, and those working in frontline health and social care roles will be eligible for a booster vaccination six months after their second dose under a program beginning later in September.

Employers should continue to encourage unvaccinated staff to get vaccinated if they are eligible, and ensure they are supporting staff who are eligible for booster jabs to get these too.  Employers may wish to consider offering paid time off for vaccination appointments and should clarify arrangements around sick leave and pay for anyone who experiences side effects as a result of their vaccination.  Employers should ensure that any information they share with staff about vaccination is from a reputable source, which might include the NHS, Government, Joint Committee on Vaccination and Immunisation, or from the employees’ GP or health professional.

The Autumn and Winter Plan also emphasises the importance of the annual flu vaccination this year, which is expected to be more widely available than ever before.  Employees may be eligible for a free vaccination through their GP surgery, or it can be purchased for a small fee from many pharmacies. Some providers will offer schemes for employers, or employers may consider allowing employees to claim back the cost of a flu vaccination.

A Coronavirus Vaccination Policy can be used to outline the steps that the organisation will take in this area – we can provide a template and further advice on request.

2. Being mindful of the limited scenarios where vaccination is mandatory

In general, Coronavirus vaccination is not a legal requirement in the UK and we would urge any employer who is considering mandatory vaccination to think carefully and take legal advice before introducing such a requirement.  Read more in our dedicated FAQ on the subject.

However, from 11 November 2021 it will become mandatory for all those entering a care home to show proof of vaccination or proof of exemption.  This requirement will extend not just to those who are employed directly to work in a care home, but also to those entering the care home to provide services such as entertainment, personal care, maintenance and delivery services.  Employers in this situation will need to ensure that staff are aware of the legal requirements and that they are in a positon to prove their vaccination or exemption status.  If staff cannot prove this, and there are no reasonable alternative duties that can be carried out, dismissal may need to be considered.  Our recent article covers the new legislation in more detail.

A consultation is also underway regarding similar mandatory vaccination legislation which would extend to frontline health and social care workers.

3. Carefully considering data protection requirements

Regardless of whether vaccination itself is mandatory, employers might feel they need to collect data on whether or not staff are vaccinated as part of efforts to encourage vaccination and/or minimise the number of employees who need to isolate at home, especially in workplaces that cannot support remote working.

Employers should be cautious about doing this.  Vaccination data amounts to ‘special category’ data under the Data Protection Act 2018 and therefore can only be gathered for specific, clearly defined reasons as set out in the legislation.  There are also restrictions on the storage and sharing of such data.  The Information Commissioner’s Office suggests that collecting vaccination data on a ‘just in case’ basis is unlikely to be lawful or necessary.

Unless it is absolutely necessary to know the vaccination status of employees (for example, to satisfy the mandatory obligations identified above), we would suggest that employers find an alternative way to overcome the issue they are trying to solve.  For example, plan for a notional number of staff to be absent due to isolation instead of asking whether staff are exempt from isolation due to vaccination.  As another example, strengthen and reinforce social distancing or hygiene requirements in the workplace instead of preventing vaccinated and unvaccinated staff from working together.  Collecting vaccination data is a significant administrative task in itself and, as discussed below, it is possible that the situation will evolve at short notice and the relevance of vaccination status could change – the protection offered by the vaccine is likely to decrease over time and not all employees will be eligible for a booster.

4. Having contingency plans in place

The Government has indicated that ‘Plan B’, which includes the reintroduction of mandatory mask-wearing in some settings and the ‘work from home’ guidance, could be implemented at short notice if the Covid-19 situation deteriorates over the winter.  Regardless of whether Plan A or Plan B is implemented, employers will need to keep their safety measures and contingency plans up to date so that they can do their part to stop the spread of Coronavirus and respond quickly to any changes.

Workplaces should ensure that staff continue to maintain good hygiene and that cleaning supplies and ventilation are available where appropriate.  Employers may also choose to implement social distancing or mask-wearing guidelines in their organisations as an additional safety measure.

Employers will need to remain mindful of the impact if whole teams have to isolate or be absent from work if there is a suspected or confirmed case of Coronavirus – if offices are open, consider staggering working days, locations or arrival times to reduce the risk of staff mixing widely with each other.  It remains the case that employees will be entitled to Statutory Sick Pay from the first day of isolation if they or someone they live with has symptoms or has tested positive, or if they have been told to isolate by NHS Test and Trace.  Employers are also reminded that it is an offence to force or allow an isolating employee to attend the workplace.

The Government has published ‘Working Safely during Covid-19’ guidance which is tailored for different workplaces across the economy.  Whilst this guidance is not legally binding, following it may help employers to meet their duty to provide a safe working environment.

The reintroduction of home working (in roles where it is possible) is an explicit part of Plan B.  Therefore employers should be ready to revert to this way of working if they can, by making sure that employees still have access to any equipment, software or support that they may have used during previous homeworking periods.

Support and reassurance will also be critical in helping employees navigate the winter months, meaning communication is key.  In the absence of clear messaging from leaders, rumours and misinformation can spread easily.  Whatever situation a business finds itself in, employers should be upfront with employees and should give plenty of opportunities for ideas and concerns to be shared.  This is particularly important where changes to terms and conditions or redundancies are being contemplated as there may be statutory timelines to meet.

Contingency plans will also need to consider the needs of employees.  For example, whilst it may be tempting to open up the office and demand the return of all staff, this may not be the safest or most supportive thing to do.  For many reasons, some employees are still likely to feel anxiety or reluctance about returning full-time.  Think about what has worked well over the last 18 months and take that forward, with a focus on ‘what’ is achieved rather than how or where.  Also, be aware of employees who have been directly or indirectly impacted by Coronavirus and ensure there is support and empathy available to them as they return to work.

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