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COVID - The Vaccine Conundrum

As the rollout of the Coronavirus vaccine continues at a blistering pace, it won’t be long before the age range of those offered the vaccine begins to include your own employees. With an unapologetic proportion of the population declaring that they do not intend to accept their offer of the vaccine, employers are beginning to wonder what their responsibilities are and will certain action have consequences.

This very point was one of the subjects in our Employment Law Update Breakfast Club this week and we have shared a recording of this part of the session below. If you want to stay fully up to date with the latest developments for employers, then you need to make sure you attend these free events. Our March meeting is available to book right now.

We’ve answered some of the most prevalent questions regarding the vaccine here, but Owen covers these with more detail in the video.

  • What are my responsibilities/obligations as an employer?

There are no statutory provisions to force people to be vaccinated and Government leaders have been clear that people will not be forced to take the vaccine. Under health & safety obligations however, employers must take all reasonable steps to reduce workplace risks. Employees have a right to refuse to come to work if they genuinely believe their life or health is at risk. Consequently, employers can and should encourage their staff to be vaccinated as it is in the interest of all parties.

Any mandated instruction to staff to be vaccinated must meet the test of being a “reasonable management instruction”; for example, the basis of the instruction could be to protect colleagues and customers from virus transmission. In such circumstances, it should be in the context of the role; does the role mean frequent contact with vulnerable customers such as a service engineer visiting residential premises. Or does being in the close proximity of an office environment create risk to colleagues.

Another point to consider here is, are there other means to prevent and reduce transmission that could be deployed such as PPE or homeworking and why is a vaccine considered more effective than these? Early research, which is pending peer review, published this week on the efficacy of the Oxford AZ vaccine, showed a 67% reduction in transmissibility, but this still leaves a third where transmission does take place. Could PPE therefore reduce the transmission risk by more than this?

Ultimately, employers must take all reasonable steps to reduce the risk but this may be achieved by methods other than vaccination.

  • Can employees refuse the vaccine and what are my rights as an employer if they do?

Employees can refuse and recent data suggests that about 12% of adults are unlikely or very unlikely to agree to be vaccinated. A reasonable refusal could be where an individual has a severe allergic reaction to vaccinations or have protection under the Equality Act for a religious or philosophical belief. The latter is unlikely to be a good enough reason for vaccine refusal due to the robust criteria that needs to be met such a belief. For example, a vegan may refuse because some vaccines are cultured in chicken eggs. However they would have to demonstrate they lived and breathed their belief much like the man who wouldn’t travel on buses for fear of killing flies that hit the windscreen.

If the instruction to be vaccinated meets the reasonableness test, then an employee could be disciplined for such a refusal, but this is likely to be a risky step to take.

An employee refusing vaccination could also be subject to restrictions such as not being able to visit certain customers or entering the communal areas at work. However, as the proportion of the population who have been vaccinated increases, then the use of such restrictions should diminish. The reasonable instruction test will also apply to these situations.

  • Do I need a vaccine policy?

Employers should have a position on vaccination and therefore a policy which should include the approach to be taken when employees are invited to receive a vaccination. This should include whether or not they be given time off to get the vaccine and whether this will be paid or unpaid. You should consider the benefits of having a healthy workforce who can come to work and be productive over the cost of an hour or two’s absence.

We are already aware of coronavirus variants which we are told the existing vaccines are effective for. Going forward however we may be subject to new variants or even whole new strains of virus that require a brand-new vaccination. Plus of course, standard flu jabs have been available for years for certain age groups so having a vaccine policy in place is a good idea. Having one in place certainly shouldn’t cause any problems.

  • Should I keep a record of who has been vaccinated

Whether or not someone has been vaccinated is effectively a matter of health and therefor likely to fall within the “sensitive information” clauses of GDPR legislation. There may be grounds for keeping a record, if the employee has to travel abroad for example, but in such circumstances, you should still seek explicit permission to hold it.

As any mandating of vaccination is likely to fraught with risk, it is best to follow the approach of those including government ministers, MP’s and the TUC, to encourage employees to be vaccinated using factual data but be prepared to listen to and discuss individual concerns.

Of course we can’t cover every individual eventuality or potential scenario so if there is something you would like specific advice about, we’re just a phone call or e-mail away on 0452 331331 or This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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