Whilst the country begins to reopen, largely thanks to a successful vaccination rollout programme, companies across the UK are assessing the impact of the COVID vaccinations on employment, health and safety and whether a requirement to be vaccinated can or should be incorporated into an employee’s contract. We look at the impact on businesses and identify what companies can do now to prepare for the wider vaccine rollout.
Employer’s duty of care during a pandemic
All employers have a duty of care to ensure the safety and wellbeing of employees whilst in the workplace and the pandemic certainly tested these protocols for even the most organised of companies.
COVID risk assessments are now commonplace with businesses regularly being required to identify the risk of transmission of the virus in their organisation. The take-up of vaccinations around the country may mean that businesses can relax some of the rules that have been put in place or remove them entirely once the workforce has been vaccinated. The efficacy of the vaccination in preventing the transmission of COVID from vaccinated to non-vaccinated person will need to be closely monitored however and ‘Covid secure’ measures may need to be modified accordingly.
Further guidance from the Government or leading industry bodies may be expected on how the vaccination should be incorporated into company COVID-19 mitigation measures.
Can or should vaccinations for employees be mandatory?
As seen in the media, it has been reported that some businesses are intending to make vaccinations mandatory before offering contracts of employment. However, the Government is not currently introducing legislation to make the vaccine compulsory and so requiring an entire workforce to be vaccinated would be difficult to achieve legally.
In the future, once the vaccination is more readily available, such a requirement may be enforceable but only if other means were utilised such as a specific provision in the contract of employment. Companies that opt to do this would need to remain flexible and consider individual circumstances such as religious beliefs and be mindful to those who are unable to have the vaccine due to health reasons, to avoid any discrimination issues.
Enforcing vaccinations for a current workforce is more problematic and varies between each workforce and each workplace setting. The debate of what is a reasonable circumstance to make vaccinations compulsory will depend on the risks of COVID and the implications of the virus spreading in that particular setting – the higher the risk a non-vaccinated person presents to themselves, colleagues and customers, the more reasonable the requirement to have the vaccination becomes.
Whether an employer chooses to implement a company policy for vaccinations will be hugely dependent on individual work-place specific conditions and settings. Thought must be given to the potential law challenges that can arise from introducing a vaccination requirement. This could include discrimination issues, human rights arguments and potential breaches by the employer of its duty of implied trust and confidence that could result in claims for constructive unfair dismissal.
What can employers do if not enforcing vaccinations to protect the functioning of the company? Over time, and as more and more people are vaccinated, it is anticipated that people’s confidence in the vaccination will improve and reluctance to have it will diminish meaning that most workforces will be protected. However, during these early rollout stages, companies want to ensure that workforces can continue to function reliably.
A review of job roles can be a useful way to identify which employees can continue working from home (either until vaccinated or indefinitely), which job roles can be continued using COVID-safe measures and whether there are any roles which may reasonably justify an employee having to be vaccinated in order to perform them. It’s also advised to consider what your company strategy would be towards employees whose role requires them to be vaccinated but they are refusing to do so, remembering that each case needs to be reviewed on an individual basis.
Boosting internal communications surrounding any crisis is of huge importance for employees. Signposting them to more information about the vaccination may encourage participation and support those who have doubts. Regularly updating employees on the company policy surrounding the vaccination programme is a good way of providing the information that is needed to help staff feel more secure and respected members of the team.