15 Feb 2022 COVID Vaccines in the Workforce: Risk Assessments and Employee Rights
By now, you should be well aware of your duty as an employer to create Covid Safe workplaces. But does the duty imposed on you as a UK employer require you to ensure your employees are vaccinated?
The short answer is no, but the long answer is a bit more complex. It’s certainly an employer’s responsibility to encourage and facilitate vaccination, but not to force it.
The legal and ethical questions situation surrounding mandatory vaccination has been in the media spotlight lately. The tense game of chicken between the UK government and unvaccinated NHS staff came to an abrupt end in the past few weeks as Sajid Javid performed a sudden U-turn on the NHS vaccine mandates for NHS staff. Putting aside any personal opinions on either side of the debate, the question for UK employers is: Where does this leave you regarding your vaccine policy and health and safety obligations?
The justification behind the government’s proposed vaccine mandate for NHS staff was that all people working in front-line healthcare have a duty of care to protect users of the health service. This is still the official stance of the government and the NHS leadership, but the argument for dismissing unvaccinated employees became less robust as the situation unfolded. The U-turn came about because recent new variants have been far less virulent and also less likely to be prevented by vaccination.
That said, certain UK employers (i.e. Pimlico plumbers) have either announced intention to make the vaccine a condition of employment, or publicised unfavourable sick pay or disincentives (i.e. IKEA) for employees who are not vaccinated.
What Health and Safety considerations are there for employers regarding the COVID-19 vaccines?
Decisions and policies must be made surrounding vaccine status and employment. So, what legal responsibilities do UK employers have towards their staff, customers and the public regarding their employees’ vaccination status? And how does this relate and correspond with employment rights?
It’s a tricky situation to navigate. Here’s our advice:
COVID-19 Risk assessments and vaccines
Risk assessments remain at the heart of managing the continuing risk of COVID-19 transmission in the workplace.
If you are using vaccination as the only or the primary method of control within your COVID-19 risk assessment, then this must reflect the current data and science. Risk assessments must be frequently updated based on new variants and new information from the government and NHS.
Employers must be increasingly cautious with the extent they consider vaccinations a method of control within their COVID-19 risk management strategy. This is because:
- How the virus will mutate remains unknown.
- Individual immune response to the vaccine varies.
- The effectiveness of the vaccine in reducing transmission appears to wane over time.
- It appears so far that new strains are becoming less virulent and producing less serious illness in most people irrespective of vaccine status.
- It also appears that new strains are more evasive of the existing COVID-19 vaccines, but data on this continues to be updated.
COVID-19 Risk assessments and un-vaccinated employees
Existing COVID-19 risk assessments must be updated as the vaccine rollout progresses, boosters become available and the definition of ‘fully vaccinated’ changes. Employers may decide it’s necessary to carry out separate risk assessments for unvaccinated employees, just as for clinically vulnerable employees.
Simply asking employees to disclose their vaccination history isn’t without its legal ramifications. Because it constitutes special category health data, there are GDPR implications. This means that there must be a legal basis for requesting and recording the information, and once collected this information must remain confidential and securely stored.
Creating a vaccine policy based on COVID risk assessments
Many employers, based on the outcome of risk assessments, decide that intervention is required regarding vaccine uptake in the workforce. Where being unvaccinated poses a specific risk to the personal health of the employee, as well as to members of the public and other employees, you may feel your duty as an employer is to view vaccination as a non-negotiable protection procedure.
Examples of workplaces and working practices that make implementing COVID-19 control procedures difficult are:
- Where employees must work in enclosed conditions without ventilation
- Where employees have close contact with members of the public
- Where employees must enter people’s homes
Employers must proceed with caution. Though tribunals and legal cases are ongoing and legal precedent has not yet been set, the potential for legal action against employers for mandating the vaccine or penalising unvaccinated employees is high.
In circumstances where it might be necessary for employers to require employees to be vaccinated, encouragement rather than coercion is advised.
ACAS advises that employers are not able to compel vaccine-hesitate employees to get the vaccine. It may be possible to discipline employees who refuse to be vaccinated for ‘unreasonable’ reasons, but the definition of what is reasonable is loose at best. Wherever possible, alternative control measures should be considered – including continued social distancing, testing, PPE and redeployment.
Your business’s vaccine policy must be closely aligned with your health and safety risk assessment. It must also comply with employment and human rights legislation. Your vaccine policy should be based on evidence, frequently updated as the situation changes, and have a robust H&S rationale behind it.
It’s our job as health and safety consultants to keep abreast of the latest guidance on employers’ responsibilities regarding COVID-19 as the situation continues to evolve globally. Find out more about our Health & Safety consultancy services here