Can employers force the vaccine on employees?

Employers can strongly encourage employees to accept the vaccination. Across all settings, employers are obliged under the Health and Safety at Work Act 1974 to take reasonable steps to reduce any workplace risks, encouraging uptake of the vaccination among employees to protect themselves and everyone else at the workplace is one way to reduce the risks.

Public Health England has issued guidance for employers explaining why employers should encourage vaccination and offering some guidance on how to do so.

Sharing Vaccine Status: Can be done and you would be collecting special category health data so there are data protection issues to consider. The Information Commissioner’s Office (ICO) has published advice to organisations who are collecting vaccination status data confirming that collection of this data must be necessary and relevant for a specific purpose. However, it confirms that if there is a good reason for collecting the information, there is a lawful basis to process the data.

If Employers want to collect information about vaccination status they will need a legal basis for doing so. The safest legal bases will be compliance with their legal obligations and “substantial public interest”. This means that preventing the spread of the virus and complying with their duty of care to employees needs to be at the root of their justification rather than, customer or staff preference or boosting confidence.

Asking employees to volunteer information about their vaccination status is less risky than insisting that they do, individuals who are happy to share the information are less likely to make a data protection complaint and the ICO would be more likely to regard their policy as proportionate if there is no mandatory element to it.

When collecting data about vaccination status, they need to make sure they comply with general data protection obligations.

Vaccinated employees only: A “double dose” policy of requiring individuals to remain working from home and not return to the office until they have received both doses of the vaccine would indirectly discriminate against younger staff, but could potentially be justified depending on the Employers risk assessment. All adults should have been offered the opportunity to have received two doses by the Autumn, so the discriminatory impact will be for limited, making it easier to justify as proportionate. Other options would be to ask employees not to return unless they are either fully vaccinated or are willing to take regular lateral flow tests. This may still disadvantages younger employees who have not had a chance of receiving a second dose and so would have to undergo regular testing. It is more proportionate, however, than not allowing them to return at all and as such, it further reduces the risk of discrimination claims.

Adopting any policy on vaccination would need to consider making exceptions for employees who cannot accept the vaccine due to medical or belief reasons.

In addition, making sure that the workplace is safe and may need to take particular care in relation to some groups of employees and this may prompt employees who want to remain working from home to make formal flexible working requests. You still have a duty of care towards your staff and employees also have the right to refuse to attend work in some circumstances where they reasonably believe themselves to be facing serious and imminent danger. This means that you need to ensure that you are implementing safety measures before requiring that employees return to the office, even if fully vaccinated.

Employers who mandate vaccinated employees return to the office will need to consider the impact of this change, together with the government guidance for contacts of people with confirmed coronavirus and the stay at home guidance for households with possible coronavirus as part of their risk assessments. Workers may be concerned about working alongside colleagues who have been notified of being in close contact, even if they are not legally required to self-isolate. NHS Test and Trace in the workplace guidance says that workers do not need to tell employers if they are a contact of a positive case but exempt from self-isolation, and employers are not expected to check whether an individual is exempt from self-isolation. Although there is no legal obligation to check, employers have a duty of care towards all employees and also have legal health and safety responsibilities.

This means employers should still exercise caution about asking individuals to attend work by relying on the fact that there is now no legal requirement to self-isolate. Employers may need to consider whether to encourage fully-vaccinated employees to let them know if they have been contacted by NHS Test & Trace, and encourage them to follow any advice they have been given about taking precautions. Measures such as working from home (if that is possible), asking employees to confirm if they have taken the recommended PCR test, regular testing, or requiring the wearing of face coverings may be required to ensure that the workplace is safe.

The NHS Covid pass is available to individuals aged over 18 who are fully vaccinated, have tested negative in the previous 48 hours (using either a PCR test or a lateral flow test) or can be taken to have natural immunity because they had a positive PCR test in the previous 6 months. Individuals who are exempt from vaccination or testing may be asked to self-declare their condition. Depending on how it is used and whether any records are created, use of the NHS Covid pass could still involve collecting special category health data so there may be data protection issues to consider. The Informational Commissioner’s Office has also released guidance explaining that a visual check of a Covid pass, without creating any records, would not count as processing data, so this may be one option for employers.

Vaccination Policy: If offering incentives for employees to take up the vaccine, then use the policy to explain and communicate the approach, along with the terms of any incentives offered. A vaccination policy may also help handling workplace disputes regarding vaccination. Consider requesting employees not to ask each other about their vaccination status, with a failure to comply being treated as a disciplinary matter. Similarly, employees who are spreading untrue vaccination myths could also face a disciplinary process outlined in the policy. Data Protection: Before processing large volumes of data regarding vaccination status, all employers would need to carry out a data protection impact assessment (DPIA) as this would be classed as special category data. The DPIA would need to consider why such data is needed and whether you have a sufficient legal basis for collecting it. Safe legal reasons will be compliance with your legal obligations and “substantial public interest”. The ICO warn that keeping vaccination status data for monitoring purposes only would be more difficult to justify. Equally, keeping vaccination status data for customer preference reasons will be harder to justify.

Employers should only collect the limited information required and hold it for no longer than necessary. Employees should be told why the information is needed, how it will be stored, how long it will be retained and who will be able to access it.

Legal Requirement: Government announced vaccination will be compulsory for all English care homes regulated by the Care Quality Commission from 11 November. This has been enshrined in legislation, meaning that care home employers will be able to rely on a legislative basis for dismissing employees who refuse the vaccine. Other employers proposing mandatory vaccination will not be in the same position and will therefore need to consider:

• Whether they have a fair reason to dismiss employees who refuse vaccination but have more than two years’ service:

• If an employer could show that having a vaccine is the most reasonably practicable way of mitigating the risk of Covid-19, having carried out a risk assessment, it could in theory mandate the vaccination as a health and safety requirement, to protect both the employee themselves and others around them. Employees who refuse the vaccine could potentially then be dismissed for a health and safety breach. This is most likely to apply in healthcare or other settings where Covid-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR).

• Vaccines may also be needed for entry to some overseas locations. If the employee’s role involves travel to those locations, then the vaccine is likely to be a necessary job requirement and the employer is likely to have a fair reason for dismissing any such employee who refuses the vaccine.

• Even if the vaccine cannot be said to be a travel or health and safety necessity in the particular workplace, some employers may also be able to establish that having a compulsory vaccination policy is nonetheless reasonable in the circumstances of their business or for certain employees

• Although customer confidence could be improved if all staff are vaccinated, it’s unclear if this alone would be enough to establish fair dismissals. Employers may, however, be able to rely on wider reasons about the role expected to be played by the vaccine in protecting against infection and transmission and achieving herd immunity. This is currently an untested area.

• Making exceptions for medical or belief reasons. Not doing so could lead to discrimination claims from employees with protected characteristics or potentially make it more difficult for an employer to justify the dismissal of an employee with more than two years’ service.

New Starter vaccine requirement: Is low risk than mandating vaccination for existing employees because there will be no risk of unfair dismissal claims from potential new recruits. There is the right not to be discriminated against because of protected characteristics.

Discipline for refusal: This depends on why the employee is refusing and whether they have at least two years’ continuous employment and so can claim unfair dismissal. If the objection is related to protected characteristics such as disability or belief, it could be discrimination to discipline or dismiss the employee. Before going as far as to dismiss an employee, employers would need to consider options short of dismissal. These might include allowing an exception, redeployment to another role, or potentially keeping the employee working from home (if possible).

Remains to be seen if Employment Tribunals would accept that measures such as regular lateral flow testing, evidence of natural immunity, or mask wearing could or should be deployed as alternatives for employees who refuse vaccination in circumstances where their employer has reasonable grounds to consider their dismissal. The NHS Covid pass takes the approach that evidence of natural immunity or a recent negative test are alternatives to full vaccination, so an employer would need to justify why.

Pregnant Employees: April 2021, the advice for pregnant women has changed and vaccination is now recommended, albeit with a specific vaccination such as Pfizer or Moderna. This is a significant change from the previous advice which was that routine vaccination should not be offered to pregnant women. Despite the change in official guidance, some women may be hesitant about accepting vaccination given the change in official advice is based on data. Employers should consider if they want to make exceptions for employees who fall within this category.

Hesitant Employees: Some employees may cite a variety of other reasons for their decision not to get vaccinated, potentially based on information they have read online. Employers should therefore tread carefully before taking any action that could breach the mutual duty of trust and confidence or deciding to dismiss an employee. Some employees may refuse vaccination as they may either believe or know that they have already had Covid-19, but the official medical advice remains that even those individuals who have had the virus should be vaccinated. This is because reinfection is possible and it is not yet known affirmatively how long any “natural” immunity acquired from having the infection lasts.

Time off during work hours:There is no general right in law for an employee to have time off for medical appointments, but we expect most employers will allow time off for Covid vaccinations and there are many cogent reasons to do so:

• Contract of employments and policies may include rights around attending medical appointments.

• Employees who are clinically vulnerable may be classed as disabled under the Equality Act and allowing time off for vaccination could be regarded as a reasonable adjustment.

• Employers have a legal obligation to provide a safe place of work and minimise risks for all employees. This could include enabling vaccination to take place.

• An unreasonable refusal to allow time off for vaccination amid a global pandemic could be a breach of trust and confidence, which could prompt constructive dismissal claims.

• Negative PR implications refusing to allow staff to attend vaccination appointments.

There is no legal requirement for employees to be paid for time off, although there are calls for this right to be introduced. In practice, many employers will allow paid time off for medical appointments. Some employers may wish to offer paid time off as an incentive (see above).

Unwell Employees: If the employee is unwell after the vaccine, with mild side effects and they are unable to work then they would be entitled to sick leave. Acas guidance recommends paying full pay in these circumstances and adjusting any levels in attendance management policies so that this type of short absence for side effects does not count towards them. This is to ensure that employees are not deterred from getting vaccinated by the prospect of having to work if they experience side effects.

Internal Disputes: Dealing with disputes internally with colleagues, could be tricky, there could be situations in which employees are uncomfortable working alongside other colleagues who have decided not to get vaccinated and make their discomfort known. Or employees may spread misinformation about the vaccine and encourage colleagues not to get vaccinated. This could become especially fraught if they involve characteristics that are protected under the Equality Act ie, on the grounds of religious beliefs and values, or if an employee with a vulnerable disabled child at home accuses colleagues of being irresponsible for not taking up the vaccine. As with other issues around clashes of rights in the workplace, this needs careful handling. Employers may need to remind employees to be sensitive and aware of the diversity of opinion that is likely to exist within the workplace.

Having a covid policy would be most helpful.

Speak to Insurer: Employers who plan to mandate the vaccine at an early stage should raise this question with their insurers. Note also that the Covid-19 vaccination has been added to the government’s Vaccine damage payment scheme.