As COVID-19 vaccines are approved and rolled out, GPs are preparing for a mass vaccination programme.
Employers should consider having a policy around healthcare and vaccinations, including COVID-19. Employers may need to revisit the policy once extensive guidance emerges from the government. However, certain assumptions can already be made such as:
- key workers, the clinically highly vulnerable and the elderly will receive the vaccine first
- the extent to which any vaccine will provide long-lasting protection against COVID-19 is unknown but re-vaccination will be needed
- it is likely to take some time to vaccinate the entire UK population so risks will remain for some time.
Employers should prepare for what to do about employees who refuse to be vaccinated and many other issues.
Encouraging vaccination
In the UK generally whilst vaccination is encouraged it has not previously been mandatory and this is unlikely to change for COVID-19. Some employers might have a right to discipline and dismiss employees who refuse vaccination based on contractual powers in their employment contracts if these contain widely-drafted medical testing and treatment clauses. However, this will be unusual. Even with a clause, injection cannot be given without consent. So, employers may be faced with staff coming into work who continue to refuse vaccination. The issues for employers to consider are similar to the existing issues relating to flu jabs.
Employers cannot insist on vaccination without an employee’s consent as forcing a reluctant employee to have a vaccination would be a criminal assault. Employers’ encouragements may range from detailed medical explanations to saying employees can’t attend the office or certain events if they continue to refuse immunisation.
In some sectors such as health care settings staff may accept a workplace vaccination programme as staff are under more pressure than others to get vaccinated against COVID-19. Such workers are already used to annual flu vaccination to protect vulnerable patients. It is at least arguable that staff who refuse the vaccine should be moved away from sick patients. Offering vaccination to all health and social care staff also helps comply with duties under the Health and Safety at Work Act (1974). Although there are other high risk workplaces such as meat-processing plants.
In other settings some staff may refuse. The best course of action will likely be for employers to encourage staff to be vaccinated and publicise the benefits. Employers can also argue that they have a duty to protect the health and wellbeing of other employees.
If employers try to make staff vaccination a compulsory condition of employment the legal problems are:
- Potential personal injury claims if vaccine side effects appear later on.
- Discrimination claims on grounds of disability or religion and belief. Some vaccinations may contain gelatin from pork, which are avoided on religious grounds. Others with some health conditions such as weakened immune systems or phobias may have issues with vaccination.
- Potential unfair dismissal claims or constructive unfair dismissal if employers dismiss or threaten employees because they refuse to take a vaccine.
Some employers may face pressure refuse to employ un-vaccinated individuals either from other employees or from the scientific community and may decide to impose a compulsory policy and run the risk of potential claims.
Overall it is safest for employers to follow government and NHS professional advice as the vaccination programme is rolled out and monitored. In some cases requiring workers to be immunised may trigger refusals and be counterproductive amongst those who are resistant to being told what to do.
Offering private vaccines for staff
There is no obligation to offer vaccination, but it may be possible for employers to pay for vaccines privately. This may be more likely shortly after the state programme is rolled out. Supply is likely to be an initial problem as governments will probably absorb most of the available stock.
Once supply improves, repeat vaccinations could be offered by employers. These will be needed, as it is not certain how long immunity lasts after the initial vaccine. At some point private vaccination can be offered as a regular work benefit (like the flu vaccine) once issues with supply become less acute, although this is likely to take some time.
Employers should also consider the following:
- Communication with employees about the benefits of immunisation.
- The possibility of asking staff who have not had a COVID-19 vaccine to work from home. (Other situations may adopt this strategy, such as passengers boarding planes or those attending sporting or other events needing to prove they have been vaccinated first.)
- Policies should also include information on hygiene measures to prevent the spread of COVID-19 and employers should send reminders of those measures at the start of each season.
- The current emphasis on home working and practical aspects such as masks and hand sanitisers whilst immunity and vaccination become more widespread.
Asking employees if they have been vaccinated
In the UK employers have a duty to provide a safe place of work. Employers who want to ask about vaccination can explain why and can argue that to protect other workers and enable the safest operation of the workplace it is necessary to request information on whether employees have been vaccinated. Matters to bear in mind include:
- Whether employers are prepared to risk disciplining or even dismissing employees who simply refuse to explain their vaccination history, or what would employers do for those who refuse comply with any vaccine requirement.
- What procedures employers have for data protection – handling records of vaccination and immunisation status and history fall within the Data Protection Act’s sensitive data rules. These rules do not prevent the processing of workers’ health information but do limit the processing, collection and use of such information about a worker’s physical or mental health or condition.
- What requisite health and safety steps will employers take for those employees who refuse to say if they have been vaccinated? For example, to protect other employees should remote working be considered for those employees?
- The extent to which the vaccine has become widely available to the workforce. Potential shortages in supply in the early months of the vaccine, may make it difficult for employees to obtain a vaccine in the short term, so they have not been vaccinated due to reasons beyond their control.
Exceptions
With regard to the vaccines scientific monitoring and research is ongoing, especially with respect to certain groups of people such as pregnant women and those with allergies. The Medicines and Healthcare Regulatory Agency (MHRA) has confirmed that the first COVID-19 vaccine (Pfizer-BioNTech) is safe and effective for the immunisation programme.
However, more data is being considered before finalising advice on vaccine safety during pregnancy and breastfeeding.
Similarly, out of the thousands on vaccines already distributed there have been extremely small numbers of mild allergic reactions. These only arose in people with a history of serious allergies (who carry adrenaline pens) and these people recovered rapidly. However, employees with a history of significant allergic reactions should delay having the Pfizer/BioNTech Covid jab until further medical evidence is available. The advice is likely to differ as different vaccines are approved and distributed.
As the position evolves employers should take great care to be aware of the current position and should protect both pregnant women and those with a history of extreme allergic reactions.
Employers should refer to the government website and the NHS website for the latest information.
Q: What should employers think about if they are offering employees a flu jab?
During the flu season, employers and employees who have not considered flu vaccination programmes previously may considering them, partly due to increased anxiety about avoiding any form of infection.
From an employer’s perspective flu-related absences affect staffing and productivity with many days potentially missed over the course of the season.
Having a policy around healthcare including availability of flu vaccinations is always helpful. Employers have no obligation to offer flu vaccination, but if it is on offer employers should think about the following:
- Communication with employees at the start of flu season about entitlement to flu jabs is important, including details of which staff are covered.
- Employers cannot insist on a flu vaccination without an employee’s consent.
- Forcing a reluctant employee to have a vaccination would be a criminal assault.
- Employer funded flu jabs may be given in the workplace, employees may be given vouchers to have the jabs elsewhere or staff can make their own arrangements for vaccination and the employer reimburses them.
- Policies should also include information on hygiene measures to prevent the spread of flu and employers should send reminders of those measures at the start of each season.
- The current emphasis on home working and practical aspects such as automatic doors and hand sanitisers may also help prevent the spread of flu.
NHS flu jabs
Some people are entitled to free flu vaccines from the NHS including:
- pregnant women
- individuals aged 65 and over
- people affected by a chronic health condition including, diabetes, or a heart condition
- carers
- people in close contact with immunocompromised individuals.
Healthcare workers especially have a much higher incidence of flu absences than the general population. Although most UK employers can choose whether to offer flu jabs employers should offer them at the start of flu season to all health and social care staff whose roles involve direct care work to comply with duties under the Health and Safety at Work Act (1974).
Other people may opt to pay for a jab. Employers don’t have to give time off work for a flu jab appointment, even for free NHS jabs. It is therefore at the employer’s discretion whether work time missed in relation to any flu-jab appointment is paid or unpaid.
CIPD 2020
