COVID-19 VACCINATION – YOUR QUESTIONS ANSWERED

Now that the first Covid-19 vaccinations are being administered, it makes sense that you’re probably beginning to wonder about the implications this may have on the workplace and whether you can request your employees to be vaccinated.

We’ve done some research and have put together a q&a to help you understand what the rules may be when it comes to asking your employees to get the vaccination.

Sarah Calderwood, an employment and HR lawyer at Manchester firm Slater Heelis made the following statement.

 “Under current health and safety legislation, employers have a duty to protect the health of employees, anyone on their premises and anyone else affected by the business”

“Existing vaccination guidelines state that if a risk assessment finds a risk of exposure to biological agents and effective vaccines exist, employers should offer to provide immunisations to those who are not already immunised, however, employees are at liberty to refuse immunisation.”

Does your employee need to tell you if they’ve been vaccinated against Covid-19?

In accordance with Data Protection legislation, an employee’s health information is considered Special Category Personal Data. Therefore, in the context of vaccinations, a permitted ground for processing special category data would be for health purposes.

So, you can request that your employee discloses this information to you. However, you will need to ensure that you’re handling their data with care and in accordance with data protection legislation. You also only need to obtain confirmation as to whether your employee has had the vaccine or not. Collecting any more data would be unnecessary and possibly considered obsessive.

Can you add an immunisation clause to your employee’s contracts?

If you want to make the COVID vaccine a contractual requirement, employees would need to agree to the changes in their T&Cs. Enforcing any changes without your employee’s express and implied agreement would be a breach of contract. They would then be entitled to resign and claim constructive unfair dismissal.

You’re also likely to struggle to introduce this type of agreement to your existing employee’s contracts. This is because it may be difficult to show that changing their terms to include the COVID vaccination is reasonable.

What about adding an immunisation clause into my new joiners’ contracts?

Some companies might want to include clauses relating to vaccination into their employment contracts in the future. That said, any future approach to COVID vaccinations should be based on the existing rules relating to flu jabs in your workplace.

You’re currently not allowed to insist that an employee has a flu vaccination even if you offer to pay for it, so making this a contractual requirement is not a recommended approach.

Can employees be disciplined if they refuse to get the vaccine?

You have a duty to ensure, as far as reasonably practicable, the health and safety at work of your employees. Therefore, asking them to agree to a vaccination against coronavirus could be seen as a reasonable step to take to reduce the risk to employees’ health.

It’s likely to be some time before the vaccine becomes available to be purchased by companies to administer to their employees. Therefore, you can encourage them instead to take up the vaccine when they are eligible under the national programme.

If an employee does not agree to a vaccine, you are limited in what you can do, beyond encouraging them. Threats of disciplinary action could raise a number of legal issues, with a particular risk of complaints relating to discrimination on grounds of religion or belief, disability and age; constructive dismissal; and human rights issues. Some employees may also have a medical reason for not getting the vaccination.

So, in answer to the question, it’s unlikely that you would be able to use health and safety grounds to justify taking disciplinary action against an employee for refusing a Covid-19 vaccination. This may change over time, when more is known about the effects of the vaccination programme, but there is still likely to be a very high threshold to meet to justify such a policy.

What can you do to encourage vaccination?

If you’re keen for your employees to be immunised, we can prepare a non-contractual policy for you. It will outline the benefits of getting the vaccine and any arrangements in place for your employees to be immunised (when the time comes).

In the case an employee refuses the Covid-19 vaccination you could meet with them privately to explain the benefits again. You should not force or discipline them.

If you’d like any further support or information regarding anything added in these Q&As don’t hesitate to get in touch with one of us at hr@stellamar.co.uk.

Author: Melissa English, HR Consultant