What the COVID-19 vaccine means for employers

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Described by the Prime Minister as a ‘biological jiu-jitsu’, this week has seen approval granted for the mass roll-out of the Pfizer/BioNTech coronavirus vaccine in the UK.

This is exciting news as we reach the end of what has been an extremely challenging year for all. However, whilst the vaccine will be welcome news to most, there will invariably be some cynicism and resistance. Its very early doors but given the impact the pandemic is having on the economy; employers are naturally going to be looking to the announcement as an indicator that there may be welcome light at the end of the tunnel.

In this article, we focus on the implications of the roll-out of the vaccine for employers and examine some early questions.

Will the COVID-19 vaccine be compulsory?

At the time of writing, it is understood that the government will not be making the COVID-19 vaccine mandatory.

The government is likely to embark on a campaign to inform the public and hopefully allay concerns about the vaccine, in the hopes that the take up will be as high as possible.

Can we legally insist employees have the vaccine?

Given the vaccine is likely to be rolled out on a voluntary basis, the short answer to this question would appear to be no.

Can we ask that employees are vaccinated?

In the same way that some employers provide voluntary access to preventive health care measures such as the flu vaccination, employers can encourage employees to be vaccinated by ensuring that staff are given time off to access the vaccine and also seek any independent advice from their medical practitioner regarding the vaccine.

In terms of asking employees to have the vaccine, employers need to be careful. You could say that employers have an ethical duty to ensure that they are supportive of the vaccine and to communicate with their staff in respect of the roll-out. However, this is very different from ‘insisting’ employees have the vaccine. If you do then you will need to have very robustly defendable reasons for doing so, after all, even the government aren’t insisting everyone be vaccinated.

Do we need a vaccination policy?

This will depend upon the needs of the business, the type of sector you are working in and so on.

At the present time it is not clear if those working in care settings for example will be required to have the vaccine by their independent regulators. If so, then organisations will need to work with their regulators to establish what those requirements are and how they will be communicated to staff.

It would not be advisable to try and implement a one size fits all policy document.

Can employees be disciplined for not having the vaccine and transmitting the virus to others?

It is important to remember that the vaccine will be rolled out in stages with certain age groups getting priority over others based on age and clinical need so employers will be faced with the situation of some workers being vaccinated before others.

England’s Chief medical Officer Prof Jonathan Van-Tam has indicated that it will be a long time before our normal lives resume. Therefore, it is likely that the current methods of preventing the transmission of covid-19, such as social distancing, face coverings and working from home where you can, will remain for some time.

Therefore, given the vaccine is not the only method of virus control it would appear to be unreasonable to discipline someone for not having the vaccine and in terms of holding them responsible for transmitting the virus, this would be very hard to prove- unless someone were to maliciously cough over a colleague for example…….

Would we have to pay SSP to someone who contracted COVID-19 having refused the vaccine?

This is likely to be a common question over the next few months.

Statutory sick pay (SSP) is precisely that, a ‘statutory’ entitlement. The only way someone would not be entitled to it is if they are not eligible due to lower earnings or their sickness was proven to not be genuine.

Therefore, if someone contracts covid-19, they will likely be ill or at the very least be advised to stay at home and isolate until they no longer pose a risk. Therefore, the requirement to pay SSP will remain.

I don’t agree with this. Surely if an employer has a duty of care to their staff and the wider public it is reasonable to expect employees to do the same. Why should employers’ foot the bill for the unreasonable behaviour of their employees?

The point you make about their being a mutual obligation in terms of a duty of care is a valid one, but most employers are not medical professionals. So in the same way that you would not decide to withdraw SSP from an employee with asthma who is also a heavy smoker, it is not appropriate to conclude that not having the vaccine will be the reason someone has contracted COVID-19.

You also need to consider that not every person who is reluctant to have the vaccine is an ‘unreasonable anti-vaxxer’. There may be a whole host of reasons for someone refusing or being reluctant to have the vaccine. For example, they may have a severe anxiety disorder and be terrified of vaccines, there may be religious reasons for their refusal or maybe they are just concerned and would prefer to wait.

It is far better for employers to deal with any cases of refusal on a case by case basis and direct someone to their GP so they can discuss the vaccine with someone qualified to answer their questions. If you have an Employee Assistance programme, remind employees they can seek advice there.

Be careful here, act in haste and you may find yourselves on the receiving end of a discrimination claim.

In summary whilst the vaccine is great news, it is important that employers don’t overreact. If organisations act dictatorially this will result in resistance and a loss of trust and confidence.

Instead, effective communication is key. Employers are advised to keep the lines of communication open with their staff and disseminate the information as provided by the government. Any individual concerns employees have regarding the vaccine should be addressed on a case by case basis and following advice from our experts.

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