The COVID-19 vaccine: What does it mean for employers?

As the COVID-19 vaccine is rolled out, we consider the various opportunities and challenges it presents for employers

26 February 2021

The rollout of the COVID-19 vaccination heralds the ‘beginning of the end’ for the social restrictions caused by COVID-19. The vaccine will offer employers the opportunity, in time, to bring employees back to the workplace and ultimately should mean social distancing and other safety measures can be reduced or removed. But of course, the rollout of the vaccine nationwide presents many logistical and ethical challenges and raises a number of novel issues that employers will need to address with care.

When will the vaccine be widely available?

The Joint Committee on Vaccination and Immunisation (JCVI) is advising the government on how to prioritise the rollout of the vaccine, with those most at risk of dying of COVID-19 being top of the list (see Priority groups for coronavirus (COVID-19) vaccination: advice from the JCVI (30 December). Vaccinations are being offered as per the following priority list to:

  • residents in care homes for older adults and their carers
  • all those aged 80 or over and frontline health and social care workers
  • all those 75 years of age and over
  • all those 70 years of age and over and clinically extremely vulnerable individuals
  • all those 65 years of age and over
  • all individuals aged 16 years to 64 years with underlying health conditions which put them at higher risk of serious disease and mortality
  • all those 60 years of age and over
  • all those 55 years of age and over
  • all those 50 years of age and over
  • the rest of the population

The scale of the vaccination programme and the need for each person to receive two jabs means it is likely to be many months before the vaccine is available ‘on demand’ but current projections for the UK are that all those over the age of 18 will have been offered the vaccine by the end of July.

How does the vaccine impact on an employer’s health and safety duties?

Employers have a general duty to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all their employees. This means employers will need to consider how the availability of a vaccine impacts on this duty over the coming months. 

Organisations have already undertaken risk assessments of the COVID-19 transmission risk for their organisation. It is understandable that there will be pressure to revisit these to assess whether any ‘Covid secure’ measures may be relaxed or dispensed with once part of the workforce is vaccinated. That may be particularly acute for organisations in which key activities have not been possible or have been substantially curtailed or impacted by having to undertake them in a ‘Covid secure’ way. 

For the time being, whilst some prior thought can be given to the issue, it is simply too early to say how the risk-mitigating impact of having a partially-vaccinated workforce might be reflected in an organisation’s COVID-19 risk assessment and its combination of risk controls to reduce transmission. The extent to which the vaccination will prevent the vaccinated person transmitting COVID-19 to those that are not vaccinated will also be important. Early signs show that it does reduce transmission but this has not yet been confirmed formally. ‘Covid secure’ measures are therefore highly likely to be required for some time and of course the requirement to work from home where possible remains in place and is expected to remain in place for some months to come. However, some advanced thought might be given to whether, for example, vaccinated employees could be cohorted to undertake some essential tasks which have not been possible or where few of the existing risk mitigations are available. 

Whether an employer will be under a duty to offer the vaccine if it becomes available privately will depend on the specific setting; however, it seems unlikely that for most employers their health and safety duties will extend this far. Just as we saw the government and HSE provide ‘Covid-secure’ guidance and advice on undertaking a risk assessment of transmission, we might expect to see further guidance on how vaccination should feature in an organisation’s list of COVID-19 risk mitigation measures.

Once the vaccine is widely available, can employers require employees to be vaccinated?

Requiring an entire workforce to be vaccinated will be difficult to achieve from both a legal and employee relations perspective. The government is not currently introducing legislation to make the vaccination compulsory and therefore it will be for individuals to decide whether to or not to be vaccinated.

Without any statutory obligation to make vaccination compulsory, employers who want to make the vaccination mandatory for their employees will need to look to other means, for example, by introducing a specific provision in the contract of employment. We know from press reports that some employers are planning to introduce a requirement that a person is vaccinated as a pre-condition to any offer of employment. In time, once the vaccination is available on demand, such a requirement may be enforceable. However, there would need to flexibility in any such policy to accommodate the situation where a person was not vaccinated for reasons of health or of religious/belief; otherwise discrimination issues could arise. 

The situation is trickier for existing employees. Employers may want to seek to rely on the requirement to be vaccinated as a lawful and reasonable instruction. The question of what is reasonable will be fact sensitive for every workforce and workplace, and is likely to depend on the risk and implications of COVID-19 in the particular setting – the higher the risk a non-vaccinated person in the workplace presents to themselves and others, the more reasonable the requirement to have the vaccination becomes. What is ‘reasonable’ will also change over time, if, as expected, people’s initial concerns about the vaccine dissipate and having the vaccine becomes more commonplace. For the moment, the reasonableness of a requirement to be vaccinated is likely to be difficult to establish, in most circumstances, in light of it being a new and invasive medical procedure.

In any event, requiring an employee to be vaccinated will present employers with a number of employment law challenges regardless of whether the employer relies on a specific contractual obligation as their chosen route or on it being a ’reasonable instruction’. These challenges include potential discrimination issues (most notably, on the grounds of disability, age, and/or religion/belief) and potential breaches by the employer of its duty of implied trust and confidence which could result in claims for constructive unfair dismissal. There is also a human rights argument linked to an employee’s right to respect for their private life.

With this in mind, what an employer decides to do in respect of the vaccination will largely depend on workplace-specific considerations. A blanket requirement on an entire workforce to be vaccinated is unlikely to be enforceable. (When we say ‘require a vaccination’ what we mean is that the employer may be able to impose disciplinary sanctions if an employee refuses. Clearly an employer who physically attempted to vaccinate an employee could face criminal proceedings for assault).

In limited circumstances, there may be health and safety or other justifications to require a vaccination in respect of specified roles and/or types of work. For example, it may be possible to justify requiring an employee to be vaccinated if their role requires them to travel abroad to countries which will only permit entry to individuals who have been vaccinated. Any employer considering this approach would need to identify and record its justification for so doing. Employers would also need to be careful to avoid inadvertent indirect discrimination in selecting the roles where vaccinations were required; for example, if an employer made its primarily female cleaning team have vaccinations, it would need to ensure this could be objectively justified.

If vaccinations cannot be made compulsory, what else can employers do?

As mentioned above, we expect the approach an employer can take will change over time as having the vaccine becomes more routine and people’s concerns over the vaccine diminish. In these early stages of the rollout, however, employers may want to audit the workforce to identify which roles can continue to be done from home (and of course for the moment the requirement to work from home where possible continues), which roles can continue to be safely performed with existing Covid-secure arrangements in place and from there, identify whether there are any roles which might reasonably justify an employee having to have a vaccination in order to be able to perform them. A desire to remove Covid-secure equipment and protections to increase productivity levels, for example, is currently unlikely to be sufficient justification to warrant requiring an employee to have the vaccination.

The next step is to identify what you will ask of employees in each of those groups who have been vaccinated – if vaccinated employees have been working from home will you require them to return to the office when this is permitted (even where they are unwilling to do so for lifestyle reasons)? Be wary of this as you may end up inadvertently encouraging people not to have the vaccine in order to be allowed to continue to work from home. You may also want to avoid situations where vaccinated staff are put to a disadvantage compared to their unvaccinated counterparts (for example, being given additional duties or having fewer opportunities to work remotely).

You should then identify your strategy for dealing with those employees who are refusing to or cannot be vaccinated. If you already have people in this group working from home, you will probably need to allow them to continue to do so for now in order to reduce their likely exposure to COVID-19 and so comply with your health and safety obligations. Likewise, where people have been working in Covid-secure premises, the Covid-secure measures should be maintained to allow them to continue to work safely. Particular attention will need to be paid to those who have been designated clinically extremely vulnerable. This category has now been expanded to include additional health considerations and to designate more people as a priority to receive the vaccine. Those who fall into the category are currently required to shield until 31 March 2021. Challenging scenarios may arise if an employee, designated as clinically extremely vulnerable, who cannot work from home, refuses to have the vaccine. If they cannot otherwise be brought back to work safely, even with Covid-secure measures, there will be some difficult decisions to make particularly once the furlough scheme winds down. You may wish to take legal advice in these circumstances.

Having mapped out roles which can be carried out without requiring the employee to be vaccinated, if you are left with roles where you cannot comply with your health and safety requirements without those people having been vaccinated – for example where they are required to work in very small spaces which cannot be made Covid-secure or where the employee cannot perform their role without having been vaccinated (see our example above of the employee required to travel abroad), then you may ultimately be justified in taking disciplinary action (including dismissal) if their role cannot be altered to accommodate and there are no redeployment opportunities. Each case will need to be dealt with on an individual basis (particularly where discrimination issues might arise) and you may wish to seek legal advice in these circumstances. This will also be a moving feast and the arguments will change over time. Employers should be mindful that in these early stages of the vaccine, individuals are likely to have more concerns about it and these should be addressed with sensitivity and in a careful manner.

As more people are vaccinated and the consequences of vaccination are better understood, employers will want to start to reduce Covid-secure measures. We would expect that the government will give guidance on when this can start to happen at which point it may mean that it becomes more reasonable for employers to expect employees to be vaccinated and/or that herd immunity may be sufficiently well-established that risks for those who are not vaccinated are acceptably low. However, for now, whilst we remain in the early phases of the vaccine rollout, it is very difficult to predict when this might happen, as much will depend on how our national population as a whole reacts to the rollout programme.

The most effective way to encourage employees to be vaccinated is a hearts and minds campaign where you engage effectively with your workforce. Consult with employee representatives and trade unions as well as with employees themselves. Provide unbiased information about the vaccine from a credible source and offer employees the opportunity to discuss any concerns they might have with an independent medical adviser. An effective engagement plan will also help bring any individual issues to light at an early stage. Employers should ensure their messaging is sensitive, clear and in line with government guidance. It may be useful to use your existing flu vaccination programmes as a basis for the internal strategy.

What can employers do if employees do not want or cannot have the vaccine?

There will be employees who are unable or unwilling to have the vaccine for a wide range of reasons. This may be because of a medical condition that prevents them from being vaccinated, it may be for religious reasons or for reasons of philosophical belief or they may have concerns about the safety or effectiveness of the vaccination.

Taking disciplinary action against an employee who refuses to be vaccinated is likely to be risky in most cases – particularly so where the refusal is for medical reasons and/or reasons of religion or philosophical belief. You will need to consider alternative approaches – for example, if the employee cannot work from home, could regular Covid testing offer a solution? However, if a situation becomes such that an employee who refuses to be vaccinated cannot be safely brought back to do their job and no reasonable alternatives or workarounds are available then it may be possible to achieve a fair dismissal although legal advice in this scenario would be advisable. Please note that any such actions are going to be difficult to justify in these early phases of the vaccine rollout.

How can an employer find out if an employee has been vaccinated?

The NHS is issuing ‘vaccine cards’ recording which vaccination an individual has received and reminding those receiving the vaccine to present for their second dose and medical records will, of course, record if someone has received the vaccine. However, whether the government will choose to issue vaccine passports or certificates is a difficult issue as it presents a number of novel, ethical issues. The UK has no history of requiring people to present certificates (aside from proof of age) in order to gain entry to public places or to access services and to do so does, Boris Johnson has said, raise “deep and complex issues”. However the government appears to be moving away from its initial stance that it would not be introducing vaccine passports by announcing a review of the proposal which will conclude by no later than 21 June 2021. We understand the review will look beyond vaccination history and may include the possibility of negative Covid tests being recorded. 

Employers are free to ask employees to provide evidence of their vaccination, and it has been reported that some employers have begun creating vaccine databases, with a number of HR companies having rolled out monitoring tools at the beginning of the year, but you need to be conscious that this will constitute special category data and as such will need to be processed accordingly under the GDPR. In addition to data protection, there will be also be potential issues around privacy, unfair treatment/discrimination and falsified documentation that employers will need to address. Consideration also needs to be given as to what you will do if an employee who says they have been vaccinated refuses to supply confirmatory documentation or if an employee refuses to disclose their vaccination status.

Will workplaces go back to normal?

The government has stated that it aims to have offered the first dose of the vaccine to all UK adults by 31 July 2021 and the current roadmap out of lockdown anticipates a return to ‘normal life’ after 21 June 2021, but it remains to be seen how long it will take to complete the vaccination programme in full, and what effect this will have on the UK’s virus rates particularly if new variants continue to appear. With this in mind, at the moment, for those who cannot work from home, the vaccine uptake should be used to supplement, rather than replace, your Covid-secure working arrangements which should remain in place unless and until the government advises otherwise. The pandemic will be with us for some considerable time to come so, as we know, employers need to plan for COVID-19 to be an ongoing issue despite the vaccine.

In addition, even employees who have been vaccinated may still not be comfortable with returning to their workplace. Employers should consider how to manage any ‘reluctant returners’, as well as how to manage a potentially mixed workforce of those who have been vaccinated and those who have not yet come through the programme (or have not otherwise had the vaccine).

What steps can employers take now?

Whilst completion of the initial vaccination programme remains a way off, there are a number of steps employers can take now to prepare for the wider rollout:

  • Audit your workforce - identify which roles can continue to be performed effectively from home, which roles can continue to safely be performed with existing Covid-secure arrangements in place and whether there are any roles which may reasonably justify an employee having to have a vaccination in order to perform them. Consider how you will manage an employee whose role requires them to be vaccinated but who refuses to do so, remembering that cases will still need to be reviewed on an individual basis.
  • Put in place an internal communications strategy – providing clear information to employees on the vaccine programme may help encourage participation and will support any employees who may have doubts about the vaccination or may otherwise be unable to have it. Be prepared for individuals to have concerns about the vaccine, especially in these early phases of the rollout. Employees should be signposted to sources of further information and support, both internal and external. Make sure that external communications (such as to clients or in advertising) align with the internal messaging and that all messaging aligns with government guidance.
  • Maintain safety measures that are already in place – the vaccination will not be available to all employees for a significant period of time and in any case, should continue to be used alongside Covid-secure practices for the time being. Employers may want to remind employees to continue to abide by the Covid measures and not to relax their efforts despite the vaccine.
  • Consider what approach to working practices will be put in place – employers should assess what will happen on the rollout of the vaccine in respect of their workforce and working arrangements. This will include consideration of issues such as anticipated timescales, working requirements at different stages of the programme, differences across group companies (including in different jurisdictions), unvaccinated employees, and legal and other risks. This planning may include undertaking a new risk assessment, and updating any currently in place. Employers should also ensure that all relevant stakeholders are involved including, if relevant, trade unions.
  • Consider your approach to third parties - identify what approach you will take to visitors to your premises – will you require them provide evidence that they have been vaccinated before allowing them to enter your premises? Make sure your approach to visitors does not undermine your approach for employees.
  • Facilitate employees being vaccinated – consider whether your day-to-day operations are likely to be disrupted by the vaccine rollout. For example, employees may need to take time off work to get the vaccine and to recover from any side-effects. The vaccine is not currently available privately, but if at some stage it is, employers may want to consider whether they would pay for employees to be vaccinated.
  • Consider how medical records will be managed – there will likely be changes to the medical information an employer will hold about its employees and therefore data protection policies and processes should be reviewed to ensure that they are fit for purpose.
  • Keep up-to-date on developments – the vaccination programme and its impact will continue to evolve over the course of the next few months. Employers will need to be prepared to adapt their plans and approach in line with new developments.

If you have any questions about how these developments (or any other COVID-19 measures) will affect your business, please contact Luke Bowery or anyone in the Burges Salmon Employment team, who would be happy to advise you.

Key contact

Luke Bowery

Luke Bowery Partner

  • Employment
  • Restructuring and Redundancy
  • Equality, Diversity and Discrimination

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