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Covid Vaccine – what should employers do when some employees are vaccinated and some are unvaccinated?

employment blog

2021 has been a year of widespread rollout of the COVID-19 vaccine (and most recently the Covid Booster Jab). However, the new Omicron variant has many concerned about the efficiency of the original Covid vaccine and it is now looking increasingly likely that Covid Vaccinations and Booster Jabs will continue well into 2022. With more employees being asked to return to the workplace, we look at the issues for employers going forward regarding vaccinations and what happens where some employees are vaccinated and others are not.

The law on mandatory vaccinations

To date, the UK Government has only legislated for the COVID-19 vaccine to be mandatory for workers in registered care homes. Legislation making vaccination a requirement for frontline health and social care workers is expected to come into force on 1 April 2022. Earlier this year Pimlico Plumbers “no jab, no job” policy received much media attention, whereby they would only engage new starters who had been vaccinated against COVID-19. In addition, employers such as Google have indicated that they will be making it mandatory for workers to get vaccinated before returning to the office. While the policy was initially applied only in Google's US campuses, they indicated that it would be rolled out globally.

There are legal impediments to a “no jab, no job policy”. Public health legislation (in both England and Wales, and Scotland), provides that any individual cannot be required to undergo medical treatment, including vaccination. This does not prevent an employer from asking an employee to consent to a contractual requirement to undergo vaccination before offering the employee work. But employers must tread carefully in these circumstances as there would always be a question mark over whether “consent” was freely and voluntarily given. If it was felt that it was not freely given, it would be unlawful. Another issue arising from mandatory vaccination policies is that of discrimination. Such policies may discriminate on the basis of disability, or religious or philosophical belief. In April 2021, the EHRC warned that blanket mandatory vaccination policies, applied inflexibly, are "likely to be unlawful" due to vaccination not being suitable for everyone as well as the discrimination risks.

Broadly, we tend to the view that mandating vaccination should be a last resort and other steps taken first.

What can employers do?

Health and Safety law obliges employers to take reasonable steps to reduce any workplace risks; this duty gives employers justification for encouraging their employees to be vaccinated. Explaining and encouraging employees with impartial, factual information will keep them informed about the workplace impact and risks of COVID-19. The Government’s Employers' communication toolkit contains various resources, including scripts to inform internal conversations, editorial content to address key vaccine information and Q&A videos. Employers should clearly communicate that employees – regardless of vaccination status - are expected to follow all rules and government guidelines, act sensibly, self-isolate immediately if required and note that disciplinary measures may result for failure to do so.

Employers may wish to consider setting out a policy on issues surrounding Covid vaccination. While we would recommend this advocate a voluntary approach to vaccinate, it could help by reassuring employees on employment related issues which might affect their decision. For example, it could detail what support is being provided such as time off to attend vaccination and booster appointments. It may also be worth considering amendments to other policies to address issues which may put employees off getting vaccinated, such as paying employees for any sick leave due to side effects from the vaccine.

What if some employees do not get the vaccine?

Tensions may arise if employees are aware that colleagues are unvaccinated and employers may need to consider how to address such issues. This is likely to be best addressed on a case by case basis. There may be reasons why an employee cannot have the vaccine, such as for reasons relating to a disability.

Consideration could be given to measures including:

  • Where employees are able to work from home, those who are unvaccinated could be asked to remain working from home for the time being. This might be particularly appropriate if the reasons for not having the vaccine relate to the employee’s health. However, it must be ensured that employees working remotely do not suffer any detriment.
  • Consider temporary redeployment or rearrangement of workstations within the workplace if there are employees with particular concerns about working with others due to their vaccination status;
  • Encourage all employees to maintain other preventative measures, such as use of face coverings or other PPE, social distancing, one way systems, hand hygiene and so on, as well as to stay home if they have symptoms.
  • Consider encouraging employees to take regular lateral flow tests and not to come to work if they receive a positive result. Again, while such tests cannot be enforced, employees hesitant or unable to have the vaccine may be open to doing this to minimise the risks of Covid. Given the vaccine does not prevent a person from having Covid at all, this is likely to be a sensible measure in any case.

If you are considering implementing any of the above measures, or require advice on the drafting of covid related policies, please get in touch with our Employment Team.  

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