Can I get my workers to get the Covid-19 vaccine?
Originally written by Anna Jordan about Small Business
With the introduction of the Covid-19 vaccine to more vulnerable groups across the country, employers may be thinking about getting their employees back to work after nearly a year of vacation, homework, or living in difficult circumstances.
One of the questions raised is whether they can make it necessary to get the Covid surge.
The short answer is no, in most cases you cannot force the staff to get vaccinated.
It is reasonable enough to strongly encourage your employees to use the vaccine. However, be aware that some of your employees may not want to receive it for health, religious, or pregnant reasons. Others have trust issues with large pharmaceutical companies or are hesitant due to the rapid development of the vaccine.
Termination of your employment relationship is considered discriminatory and could take you to court for unjustified dismissal.
Sarah Calderwood, Human Resources and Labor Lawyer at Slater Heelis, said, “Health and safety regulations require employers to protect the health of employees, everyone on their premises, and everyone else affected by the company.
"Existing vaccination guidelines state that employers should offer to offer vaccinations to those who have not yet been vaccinated if a risk assessment indicates a risk for exposure to biological agents and effective vaccines. However, employees are free to decline the vaccination."
> See also: How to Perform a Coronavirus Risk Assessment in Your Small Business
The biggest limitation with all of this is what type of business you are running. If your business is in a specific sector – say, you run a nursing home – there may be a better foundation for employees to get the trick.
Reports show that at the time of writing, up to a fifth of homeworkers have turned down the vaccination. The National Care Association asked for advice on whether to force staff to get the bump.
In addition, Pimlico's Charlie Mullins (formerly Pimlico Plumbers) recently announced that the company would adopt a "No Jab, No Job" policy. He said once the bump is out there and going private, he would pay for all of his staff to have it after he'd already allocated £ 800,000 to immunize the staff. Defending the policy, he says the company will provide them if they go to a country that requires a sting. For newcomers, he will only hire employees who have been vaccinated against Covid-19. Lawyers help Pimlico implement this policy.
> See also: Charlie Mullins: "I don't like banks – they're crooks in suits."
The Minister for Vaccine Use, Nadhim Zahawi, does not agree with the move. “I find that discriminatory. We're not that kind of country and I think it's important that we do it by conviction, ”he told Radio 4's Today program.
Nick Hurley, partner at Charles Russell Speechlys, said "No sting, no job" may seem straightforward, but whether an employer can impose the Covid-19 vaccine on employees is far from easy. There are many other factors to consider. "
To remove the confusion, we asked various lawyers for input to learn more about these factors and how they affect you and your employees.
Is Anti-Vaccination / Anti-Vax Considered a Philosophical Belief?
In the past few years, more and more people have decided to opt out of vaccines – this is also known as the anti-Vax movement. Some employers will wonder if Anti-Vax is considered a philosophical belief under the Equality Act.
First, let's establish what a philosophical belief is. An employee would have to show:
- It is a belief and not an opinion or point of view based on the current state of information
- Faith is really held
- Faith concerns a "weighty" and essential aspect of human life and behavior
- It is "worthy of respect in a democratic society".
- It is held with "sufficient coherence, seriousness, cohesion and importance".
Charlotte Farrell, Associate Solicitor at Paris Smith said:
“There is a risk that individuals could attempt to argue that an 'anti-Vaxxer', ie not consenting to vaccinations, should be considered a philosophical belief for the purposes of the Equality Act 2010, but this has not been reviewed and it would also be a difficult argument to prove. "
Recent case law has confirmed that there must be a coherent belief system behind it in order to be a philosophical belief. This has been tested in the case of vegetarianism. The fact that people became vegetarians for many different reasons was fatal as it was viewed as a philosophical belief. However, veganism has proven to be a philosophical belief.
Since the anti-vax movement has many different motivational factors, it is likely that a similar approach will be taken for vegetarianism, although there is no guarantee. There is also a lot of misinformation about the vaccine which could influence any argument that the belief on the subject is held with "sufficient coherence and seriousness".
"Labor courts are also likely to consider public policy reasons for not having a vaccination and the impact it has on the health and well-being of others," Farrell said. "Those who advocate the belief on religious grounds may have a stronger argument, and each case must be viewed in terms of its specific facts."
Do my staff need to tell me that they are receiving the vaccine?
No, they don't. This information is considered by the Information Commissioner's Office (ICO) as data with special protection, so your staff does not need to notify you that they are receiving the vaccine. The only exceptions are if your employee contracts contain a clause that says they must identify you as such, or if there is a health purpose in asking for this information.
Sarah Calderwood said, “In the context of vaccinations, one valid reason would be to process special category data for health purposes. However, employers need to ensure that they handle their employees' data with care, and the ICO advises that employers only need to receive confirmation that the employee has received the vaccine and that further data collection is unnecessary and excessive . "
Can I change contracts so that my employees have to get the sting or add a vaccination clause?
That's not that easy. You would need to get approval from staff to make the change. This is a challenge when there are employees who either don't want the vaccine or consider it unethical to make it mandatory. The latter is important to take into account your reputation. Such a clause could discourage candidates from applying for your company in the future.
Sarah Calderwood said, “Employers who enforce this change without the express and tacit consent of the workers would be in breach of the contract and workers would be entitled to resign and seek constructive unjustified dismissal. Employers may find it difficult to describe this change as appropriate and may have difficulty introducing this type of agreement for existing employees.
"If employers were to include a vaccination clause in new starter contracts, it would have to be done in an appropriate manner, including consultation with employees who for any reason are concerned about the vaccine."
What about interviewing candidates? Can I ask if they received the vaccine?
You can't ask potential employees if they received the vaccine unless there is a compelling health and safety reason to ask why.
Again, this is sensitive data, so in most cases it is considered inappropriate to ask questions in the interview.
Laura Kearsley, partner and labor lawyer at Nelsons, said: “There is a general ban on employers from asking potential employees any health-related questions that would include their vaccination records if they did so. However, there are limited exemptions that can apply to sectors and occupational roles where there is a specific health and safety reason. This means that the employer needs to know if you have been vaccinated or not. "
How can I encourage employees to receive the Covid-19 surge?
As much as you can't force the staff to inject, you can definitely encourage them. This can be done by providing reliable information or by other means to assist your staff in obtaining the vaccine.
Laura Kearsley said, “We encourage our customers to encourage their employees to vaccinate by making sure employees have access to reliable information about the vaccine so they can make an informed decision – and even provide paid time off for vaccination can appointments. "
Sarah Calderwood added, “Employers interested in having their employees vaccinated should write a non-contractual policy outlining the benefits of vaccination and any precautionary measures for employees to be vaccinated. Any staff who reject the vaccine can be met privately to re-explain the benefits. "
How do I start re-introducing employees to work?
Much of your measures to reintroduce your employees to the workplace are based on the Covid-19 risk assessment you mentioned at the beginning.
Charlotte Farrell, Associate Solicitor at Paris Smith said:
“Discussions with specific people about their concerns and their own risk factors will also be required. It may be possible to make decisions based on those who received the vaccination and those who did not. However, employers must be wary of any indirect discrimination arguments that may arise from them.
“For example, younger employees are vaccinated last and could therefore argue that the decision to leave employees behind after vaccination is indirectly discriminatory on grounds of age. Such decisions may be justified if there is a good business reason that was necessary and proportionate. "
She continues that at the moment it's not clear whether the vaccine will prevent transmission or just prevent someone from getting seriously ill. Employers have an obligation to protect the health and safety of workers and therefore this needs to be a focus. If there is clearer evidence that the vaccines prevent transmission, it may be more likely that an employer could justify a decision to consider vaccinations when workers return to work. However, if this only prevents the person who has the vaccine from getting seriously ill, such arguments may be less valid.
Employers can also try to introduce rapid Covid tests while the vaccine is being rolled out. Note, however, that their accuracy is inconsistent. If an employee tests positive, ask them to take a traditional test. If this is also positive, he must self-isolate according to government guidelines.
Read this guide for employers on introducing Covid-19 testing.
Where can I get more advice about the Covid-19 vaccine?
If you want more advice tailored to your company's needs, it is best to reach out to a trusted law firm with your concerns.
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