Covid-19 vaccine and the impact on employers
There has been much excitement over the last few weeks following the commencement of mass vaccinations against Covid-19.
Whilst this undoubtedly represents a positive development for the nation as a whole, the beginning of the UK-wide vaccination process has the potential to create a number of issues in the workplace, which employers will need to carefully consider. For example:
Can an employer insist their employees have the vaccine?
In the majority of workplaces, employers would be well advised not to insist that their employees have the vaccine. The Government has made it clear that it will not be mandatory for people to receive the vaccine and it will be difficult for employers in most sectors to apply a different standard to that of the government on this point. Staff who refuse to get the vaccine should, by the same logic, not be subject to disciplinary proceedings. If an employee was dismissed because they refused to take the vaccine it is likely that this would constitute an unfair dismissal in most cases.
Can employers encourage employees to have the vaccine?
Yes. Under section 2 of the Health and Safety at Work Act 1974, employers must ensure (so far as reasonably practicable) the health, safety and welfare at work of its employees. This extends to ensuring that risks in the workplace are reduced to the lowest level that is reasonably practicable. By encouraging employees to have the vaccine, employers would be greatly reducing the risk of spreading the Covid-19 virus within their workforce.
Can an employer refuse entry to their workplace for employees who refuse the vaccine?
An unvaccinated employee could, technically, be refused entry to the workplace if an employer has implemented a policy authorising this. However, there are obviously potential risks associated with taking this step. The employee’s refusal to be vaccinated may engage the Equality Act 2010 if it is connected to disability, religion or philosophical belief. It is also likely that any employee refused entry would have to be paid in full if they are ready, willing and able to work (and have only been sent home because they are unvaccinated). Failure to do so could lead to a constructive dismissal claim.
Are there any data protection considerations?
Information about which employees have been vaccinated will be considered sensitive personal health data. This applies not only to data identifying employees who have been vaccinated but also to data identifying employees who have not been vaccinated. This data will need to be kept subject to all the necessary protections and rules required by the Data Protection Act 2018.
Can employers bulk-buy the vaccine to distribute to their employees?
As it currently stands, the vaccine will only be available as part of the NHS rollout. The Deputy Chief Medical Officer has said the vaccine should be delivered according to clinical priority. Thereafter, once the vaccine becomes available commercially, there seems to be nothing to prevent employers from offering vaccination against Covid-19 as a benefit for employees (in much the same way that many employers offer annual flu jabs to the workforce).
If you have any questions about how these issues may affect your business, please e-mail Paul Kelly at PKelly@LawBlacks.com.