Can an employer request staff to have the vaccine?
Yes, an employer can suggest that staff have the vaccine, however, as with any medical procedure (irrespective of how major or minor it is), employees are entitled to refuse them in line with the Human Rights Act 1998. It would be considered best practice for an employer to encourage staff to have the vaccination; this could be done by providing them with enough accurate and reliable information on the vaccine to allow them to make informed decisions about it and giving them time off to get the vaccine.
Can members of staff request to have the vaccine?
At present, the vaccine is only offered on the NHS, and, based on its official roll-out, the vaccine was initially offered only to specific groups of the population – those considered key/frontline workers and those that are deemed as clinically extremely vulnerable. Since the beginning of its roll-out, all those aged 50 and above have been offered the vaccine. Unless a member of staff falls within this age range, both employers and employees will need to persevere until the vaccine is offered to other members of the public (aged 49 and below) to access it.
Are employees entitled to time off during working hours to get the vaccine?
We are yet to see any official guidance from the government on this at this stage, however, it would make sense for businesses to allow their staff the time off to get the vaccine and, by doing so, this would demonstrate their support towards the government’s COVID-19 vaccination campaign. It is up to the employer as to whether or not this time off will be paid and may ask an employee to select a vaccination time slot that minimises disruption to the business in the instance where they are offered a choice of appointment times. If slot times are limited however, it would be best practice that employers act reasonably when asking for appointments to be rescheduled in order to help minimise administration burden to the NHS.
Will employees receive paid time off to get the vaccine?
As it stands, there is no official guidance from the government about paid time off for this purpose. Despite it being at the employer’s discretion, it is recommended that employers pay the time off to encourage employees to have the vaccine.
Can an employer incentivise employees to get vaccinated?
We are seeing many employers allowing paid time off for staff to have the vaccine and this will certainly help encourage uptake, especially for vaccine appointments during working hours. However, we would advise against offering any further financial incentives as, doing so, could increase the risk of potential discrimination claims that may arise from employees that are in a category that cannot/chooses not to be vaccinated i.e., for health or religious reasons, (or indeed if the employee is not within the age category of which the vaccine is being offered to), especially if other staff members are being seen to be financially benefited by getting vaccinated.
Can an employer change employment contracts to get employees to have the vaccine?
We would advise against changing employment contracts at this stage for this purpose on the basis that, a. the vaccine has not been declared mandatory by the government and could be deemed an infringement of human rights if an employer were to impose the uptake of it, and b. the vaccine has only been made available to certain groups of the population, therefore, it would not be practically feasible for all staff members to access it anyway. It would be a safer option to, instead, suggest and encourage staff to have the vaccination by providing them with enough accurate and reliable information about it and giving them the time off to go have it. For changes in contracts on this topic, we strongly advise employers to proceed with caution, following expert advice and current legislation, to mitigate any risk of a claim being brought against business.
Can employers make it mandatory for staff to get vaccinated?
Until such time the vaccine is deemed mandatory by the government, which, in itself, is unlikely considering other immunisations that have been available on NHS for decades (e.g. MMR, Rotavirus, MenB, etc.) are also not mandatory, employers are not legally permitted to instruct staff to have the vaccine. What employers can do is encourage their staff to have the vaccine (especially those working in close proximity with others and the public) and ensure they are providing them with enough accurate and reliable information on it to allow them to make informed decisions. Allowing staff to take paid time off to have the vaccine will also be helpful.
What if there are health reasons for not having the jab?
There will be some individuals that will not be able to have the vaccination, for example, because they are allergic to one or more of the vaccine ingredients. If an employee is deemed to be one of (or both) of the two categories of the population currently allowed access to the vaccine and is unable to get the COVID-19 jab due to health reasons, it is the employer’s responsibility to ensure a risk assessment is conducted to identify suitable remedial measures that will mitigate the risk of catching/spreading the virus and to implement any working amendments necessary. Some suggested amendments could be:
- A change in working location (e.g. employee to be primarily home-based)
- Providing a separate office for the employee to work in instead of being in an open office
- Spacing out desks for all staff in open office layouts
- Allowing the employee to take part in meetings with colleagues, clients/customers remotely (where possible) to minimise face-to-face contact
It is recommended that employers proceed with caution in such instances, following expert advice and current legislation on this matter, to mitigate any risk of a discrimination claim brought against the business. Employers should, at all times, ensure their workplace is COVID-secure in line with government guidelines.
What if there are religious reasons for not having the jab?
It is against the law to discriminate against an employee on the basis of their religion or belief; therefore, in such an instance whereby the employee is working in a high-risk category job, it is advised that an employer, having conducted a risk assessment, implement reasonable working amendments to allow the employee to continue working safely, mitigating the risks of catching and spreading the virus. In the instance where amendments are not deemed possible, for example, due to the nature of the role/job, the business ought to consider whether there are any suitable alternative roles available for the individual to take on instead. It is recommended that employers proceed with caution in such instances, following expert advice and current legislation on this matter, to mitigate any risk of a discrimination claim brought against the business. Employers should always ensure their workplace is COVID-secure in line with government guidelines.
Does it matter whether employees are customer-facing or office-based?
Yes, the nature of the employee’s role should be taken into consideration, especially when conducting risk assessments for the catching and spreading of COVID-19. For example, if an employee is home-based and does not need to come into close contact with others (i.e. colleagues, customers/clients) to conduct their duties, then it is fair to deem them to be at low risk of catching/spreading the virus. On the other hand, if the employee’s role entails a significant amount of close contact with others whilst conducting their duties, then this, by default, puts them in the high risk category and it would be wise to complete a risk assessment and implement mitigating measures as appropriate, one of which could be to encourage the employee to get the jab.
If a member of staff refuses to take the jab, what other options does an employer have?
Employees are within their rights to refuse to have the vaccine; it is advised that, employers continue to follow government guidelines to ensure their workplace is COVID-secure and conduct risk assessments, especially for employees that are in the ‘high risk’ category of catching and spreading the virus (for example, due to the nature of their role), and action any recommendations that surface as part of the risk assessments. Further to this, employers can encourage staff to have the jab by providing them with enough accurate and reliable information to allow them to make informed decisions about it and giving them time off (preferably paid) to get the vaccination.
Can a manager ask an employee to stop sharing her/his opinion against the vaccine?
Best practice would deem that it would be better to make it a general rule amongst staff to avoid discussing personal opinions on the vaccine due to it being a sensitive and/or emotive subject. By doing so, a manager is mitigating the negative impact of such discussions on overall morale and preventing the employee in question from feeling singled out. It is always a good idea to do this in conjunction with clear communication sent to staff from the business on the COVID-19 vaccine based off reliable and accurate resources to help employees make informed decisions about the jab. If a member of staff seems to be making a habit of sharing their opinion on this matter and there are concerns s/he is being disruptive, the manager could ask her/him to stop doing so as they deem it inappropriate on the basis that it has/could cause upset being a sensitive subject and that failing to do so could result in them being subject to disciplinary action taken against them for failing to follow reasonable management instructions.
Can an employer conduct a company-wide survey to check which (and how many) employees have had the vaccine?
Yes, an employer can conduct such a survey, however, this will need to be done in line with Data Protection legislation (for example, the information will need to be given to staff beforehand on the purpose of the survey, how the data collected will be used and stored, how long it will be stored for, who the information will be shared with, etc.) and it should be made optional to employees as to whether or not they wish to disclose such information without the fear that they may face negative consequences for choosing not to participate in the survey.
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