COVID-19 Vaccinations In The Workplace - Q&A For Employers

Here, we address some of the other common scenarios facing employers dealing with issues arising out of COVID-19 vaccination.

The most common employees’ objections to COVID-19 vaccinations

• Vaccination is not necessary or reasonable when other less invasive measures could be taken
• The government does not require our industry to implement compulsory vaccination
• You can’t legally compel me to be vaccinated
• I can’t get vaccinated because of my health
• I can’t get vaccinated because of my beliefs
• I can’t get vaccinated because of my pregnancy or because I am breastfeeding
• I am very anxious about needles or about the side effects of the vaccine

Does An Employer Have A Health And Safety Obligation To Ensure Its Employees Are Vaccinated?

Employers have health and safety duties to their employees and the people that they come into contact with, including customers or service users and third parties, to minimise the risk of exposure to COVID-19.

An employer wishing to impose a mandatory vaccination requirement must first:

• Undertake a detailed risk assessment to evidence why COVID-19 vaccination is required in addition to compliance with the stringent COVID-19 secure guidelines already in place.
• Consult with workplace representatives or trade unions.

The employer should regularly review the vaccination requirement as the current mass vaccination programme progresses.

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Should Employers Require Employees To Sign A Vaccination Waiver?

Owing to the potential risk of a claim from a worker who contracts COVID-19 in the workplace, it has been suggested that employers may wish to consider requiring workers who refuse the vaccine to sign a waiver indicating that they understand the medical risks of their decision as a condition of being permitted to enter their workplace.

Employees cannot waive liability for personal injury caused by an employer’s negligence (section 2 Unfair Contract Terms Act 1977). Therefore, such a waiver would be ineffective if the employer is not fully complying with the COVID-19 secure guidelines.

In many cases, it will be difficult to establish that the worker contracted COVID-19 in the workplace as they will almost certainly have been exposed to risk elsewhere. Further, a significant number of individuals who contract COVID-19 are asymptomatic and are therefore not tested. If the workplace does not require regular testing the employer would not be aware that its workers were exposed in the workplace and therefore could not take additional measures to prevent transmission. 

Can An Employer Prevent Unvaccinated Employees From Entering The Workplace?

Previously, it was not practicable for most employers to prevent unvaccinated staff from entering the workplace as a large part of the working population had not been offered even a first dose of the vaccine. Vaccination is now available to all people aged 12 and over.

Employers should carefully consider whether it is appropriate to prevent unvaccinated staff from entering the workplace before making a decision. Current Government advice is clear that the vaccination status of a workforce has no impact on the safety measures employers should follow.

An employer could consider all the alternatives to vaccination, such as allowing them to continue to work from home, if possible. However, the employer must ensure that employees working remotely do not suffer any detriment, and consider that vaccinated employees might consider it a detriment to be required to come back to work. To facilitate employee relations, a hybrid working arrangement for all staff may be preferable.

Can An Employer Discipline An Employee Who Refuses To Have A COVID-19 Vaccine?

An employer could argue that a vaccination request amounts to a reasonable management instruction on the basis that it is intended to protect health and safety. Failure to follow an employer’s reasonable instructions can lead to disciplinary processes and dismissal.

Whether a vaccination requirement is a reasonable management instruction depends on the facts of an individual case. If the employer deems an employee’s refusal to be vaccinated unreasonable, then disciplinary action might be justified on the basis that they are not acting in the best interests of their employer, colleagues and potentially customers to take care of their health and safety.

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Can An Employer Dismiss An Employee Who Refuses To Have A COVID-19 Vaccine?

To fairly dismiss an employee with the requisite length of service (2 years), an employer must be able to rely on one of the five potentially fair reasons for dismissal.

As with all employment relations disputes, advice can only be given on a case by case basis. However it is our view that Employment Tribunals are not likely to consider a vaccination requirement reasonable unless it is essential and necessary for the employee to carry out their role. We expect that an Employment Tribunal would sympathise with an employee who did not want to receive a COVID-19 vaccine and was dismissed or disciplined as a result. An Employment Tribunal would be slow to find it fair to impose what is effectively a medical procedure on employees, although we are unaware of any authority directly on the point and the nature of the workplace could be a relevant factor.

A dismissal is potentially fair if an employee cannot continue to work in the position they hold without either the employer or the employee contravening “a duty or restriction imposed by or under an enactment” (section 98(2)(d), ERA 1996)

Employers should also consider the potential reputational risk and risk to workplace relations before dismissing an employee for refusing a COVID-19 vaccine.

Are Employees Entitled To Paid Time Off To Be Vaccinated?

In the absence of a specific contractual provision, there is generally no legal requirement for employers to provide employees with paid time off to attend their vaccination appointments. However, employers paying staff their usual rate of pay could encourage employee take-up of the vaccine which, in turn, supports an employer’s statutory and implied duties to take reasonable care of the health and safety of their employees and to take reasonable steps to provide a safe workplace and system of work. Public Health England also encourages employers to be open with employees about any support being provided, including breaks or time off to get vaccinated. However, it does not specify that employees should be entitled to paid time off to attend a vaccination appointment.

Employers should consider whether it would be a reasonable adjustment to provide paid time off for a disabled employee to attend their vaccination appointments, given the extra difficulties some disabled people may face.

What Are Employees Entitled To Be Paid If They Suffer Side Effects From The Vaccine And Are Unfit To Attend Work?

The vaccine can cause mild, short-term side effects in some individuals, which usually last less than a week. In most cases, an employee should not need to take time off work following vaccination. Where they do, this should be short term and the employer’s usual sick pay policy should apply.

One way employers can encourage staff vaccination is to ensure that they are paid their usual rate if they are off sick with vaccine side effects.

Acas also suggests that vaccine-related absence should not count towards HR trigger points in sickness absence policies after which absence is dealt with formally in accordance with the procedure in the policy.

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What Is An Employee Entitled To Be Paid If They Refuse To Be Vaccinated?

The issue of pay for employees who refuse the vaccine may arise where an employer decides that unvaccinated staff should not enter the workforce.

Employers should pay employees who can undertake their role remotely as normal. However, where an employee is unable to carry out their role remotely, the issue of pay is problematic. The employee will argue that they are willing and able to work and should therefore be paid in full. However, the employer’s position will be that the employee cannot work for health and safety reasons.

Statutory sick pay (SSP) is not available where an employee is fit for work but unable to work because their employer requires them to be vaccinated. The exception is employees who are shielding as they are within the clinically extremely vunerable group.

Where an employee is unable to be vaccinated for medical reasons, or refuses vaccination on, for example, religion or belief grounds, there is authority to suggest that the employee’s inability to work is due to an “unavoidable impediment” or external constraint and the employer should continue to pay them.

Can An Employer Withhold Sick Pay From An Employee Who Refuses To Be Vaccinated?

Withholding sick pay for an employee with COVID-19

We do not consider that an employer could withhold either statutory or contractual sick pay from an employee who has refused the vaccine and contracted COVID-19. The reason an employee has become ill does not affect their entitlement to SSP. Likewise, many occupational sick pay schemes are likely to have contractual force, and do not usually distinguish between different types of illness or the circumstances in which the illness was contracted.

Withholding sick pay for a self-isolating employee

A slightly different scenario may arise during a period of self-isolation where the employee is asymptomatic (for example, following a notification from NHS Test and Trace, or a “ping” on the NHS COVID-19 app). Such scenarios are covered by the SSP scheme but may not be covered by an occupational sick pay scheme (depending on its wording and contractual force). Employers may therefore have a certain amount of freedom to withhold occupational sick pay from those who are self-isolating but have declined the opportunity to be vaccinated (subject to the potential discrimination and human rights issues).

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Can An Employer Discipline An Employee Known To Be Promoting Anti-Vaccination Amongst The Workforce?

Some employees may have a strongly held belief that vaccines are harmful to public health (sometimes referred to as “anti-vaxxers”) and may seek to promote this amongst an employer’s workforce. In this situation, employers should consider the behaviour in question and the impact it is having on its workforce to determine whether it may be appropriate to conduct a disciplinary investigation.

To determine the appropriate course of action, employers should consider the following:

• Its statutory and implied duty to take reasonable care of the health and safety of their employees and to take reasonable steps to provide a safe workplace and system of work, so what impact the employee’s actions have on the employer’s ability to comply with this duty.
• The employee’s duties to take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions at work and to co-operate with their employer so far as is necessary to enable compliance with any statutory duty or requirement relating to health and safety
• The employees’ Article 9 human right to freedom of thought, conscience and religion and Article 10, Human right to freedom of expressions.

How To Deal With An Employee Who Does Not Want The Vaccine?

If someone does not want to be vaccinated, the employer should listen to their concerns. Employers should be sensitive towards personal situations and must keep any concerns confidential. They must be careful to avoid discrimination. If someone is concerned about their health and the vaccine, they should be encouraged to talk to their doctor.

How To Deal With Complaints From Vaccinated Colleagues That They Do Not Want To Work With An Unvaccinated Colleague?

This depends upon the situation itself. As an employer you owe your employee a duty of care. The law is very clear on the fact that if employees feel their workplace is unsafe, then the law is likely to protect them for refusing to attend.

If employers treat employees unfairly, dismiss then or take some action that leads them to resign as a result of  raising health and safety issues, then they may have a legitimate claim against the company for automatic unfair dismissal under the Employment Rights Act 1996. Whether the claim would successful is dependent on a number of factors. The Employment Tribunal would consider factors such as whether the concerns and beliefs were reasonable and justified, whether the employer had followed any guidance, and the extent of the danger the employee would be placed under if you returning to work.

The employer owes a duty of care to all employees, and if the employers have implemented all reasonable steps and is complying with all safety measures, and risk assessments have been carried out, then unless there is a medical reason relating to the employees refusal to return to the workplace, the employer may consider you to be on unauthorised absence that could result in disciplinary action.

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I Want All My Employees To Be Vaccinated?

If an employer feels it's important for staff to be vaccinated, they should talk together with staff or the organisation's recognised trade union to discuss what steps to take. Any decision after that discussion should be put in writing, for example in a workplace vaccination or testing policy. It must also be in line with the organisation's existing disciplinary and grievance policy. It's best to support staff to get the vaccine without forcing them to do so.

Resolving Issues About Getting The Vaccine

If an employee or employer feels there's an issue, it's best to try and resolve it informally.

An employee or worker can raise an issue by talking with their:

• employer
• trade union representative, if they're a member of a trade union
• health and safety representative, if they have one
• employee representatives

If it cannot be resolved informally:

• staff can raise a problem formally by raising a grievance
• the employer could start a disciplinary procedure

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