COVID-19 Vaccinations: Interacting With Employees

Encouraging vaccination

In the UK the vaccination programme is currently ongoing. Whilst vaccination is encouraged, it has not previously been mandatory, and it is not likely to become so for COVID-19. There may be some professions where employers may hold the right to discipline employees who refuse vaccination based on the existence of any widely-drafted medical testing and treatment clauses in their employment contracts. However, this is unusual and even with such a clause, injections cannot be administered without consent. Therefore it is important to communicate with staff regarding their desire to be vaccinated, as some may refuse.

It is essential to note that employers cannot insist on vaccination without an employee’s consent and forcing a reluctant employee to have the vaccine would be a form of criminal assault. In some sectors, such as health care, there may be opportunity to set a workplace vaccination programme in place, as these staff are under greater pressure to be vaccinated against COVID-19. Many workers in this sector may be used to receiving annual flu vaccinations to protect vulnerable patients, and offering vaccinations to all health and social care staff also helps comply with duties under the Health and Safety at Work Act (1974). It is also arguable that staff who do not wish to have the vaccine should be moved away from sick and especially vulnerable patients.  There are also other high-risk working environment, like meat-processing plants, where vaccination may be particularly encouraged.

In other settings, however, staff may refuse. In such situations, employers can encourage staff to be vaccinated and publicise the benefits of vaccination, and can argue that they have a duty to protect the health and wellbeing of other employees. However, employers should be careful if trying to make staff vaccination a compulsory condition of employment as the potential legal problems include:

• Potential personal injury claims if vaccine side effects begin to appear later on. 
• Discrimination claims on the grounds of disability or religion and belief. Some vaccinations may contain gelatin from pork, which is sometimes avoided on religious grounds. Others may have physical health conditions such as weakened immune systems.
• Potential unfair dismissal claims, or constructive unfair dismissal if employers dismiss or threaten employees because they refuse to take the vaccine.

There may be situations where some employers face pressure to refuse to employ those who haven’t been vaccinated, either from other employees or from the scientific community. In this case, an employer may decide to impose a compulsory policy and run the risk of potential claims. However, in some cases, requiring workers to be immunised may be counterproductive as it may trigger refusals in some employees and cause further workplace issues.

Altogether, it is safest for employers to follow government guidance and NHS professional advice as the vaccination programme is rolled out to the workforce. Regularly check the government website and the NHS website for further detail. 

Enquiring If Employees Have Been Vaccinated

In the UK employers have a duty to provide a safe place of work. It is possible that employers who want to ask about the vaccine and request information on whether employees can be vaccinated, can argue that this information enables them to protect other workers and facilitate the safest operation of the workplace. However, there are some points to bear in mind when inquiring about vaccination:

• Exactly what the consequences are for employees who refuse to explain their vaccination history, if any.
• What health and safety steps, if any, will need to be taken if some employees refuse to give information about their vaccination history. Are there other employees who will need to be protected?
• What procedures employers have in place for data protection – handling records of vaccination and immunisation status are included within the Data Protection Act’s sensitive data rules. This does not prevent the collecting or processing of such information, but does limit the uses of such information about a worker’s physical or mental health or condition. Our system, In-House HR, can hold such information in a secure manner to help you process this information legally and fairly.
• The extent to which the vaccine has become widely available to the workforce, as potential shortage sin supply may make it difficult for employees to obtain a vaccine in the short term. Some employees may not have been vaccinated due to reasons beyond their control.