Gradual return being encouraged
Following the easing by the government of the Covid rules in England, people who have been working from home are being encouraged by Boris Johnson to return to their workplace gradually. Many businesses will have carried out health and safety assessments and taken those reasonable steps necessary to minimise the risks identified to their staff and to give confidence to their employees that their workplace is safe. But can an employer require their return to the office and what if an employee is reluctant (or refuses) to be vaccinated?
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Can we mandate that our employees are vaccinated?
Generally, no one can forcibly vaccinate another person against their will (without facing criminal sanctions). This means that employers cannot rely on a legal requirement to require vaccinations except for those people working or volunteering in a care home in England (unless exempt) from 11 November 2021. In all other cases, the Covid-19 vaccination has yet to be made mandatory by the government.
Nevertheless, employers have an obligation to keep their employees, visitors and customers safe when at their premises. So, if we were to determine that the vulnerability of our customers or services weighed in favour of vaccination over the freedom of our employees to choose not to be vaccinated (e.g. providing care-in-the-home), then it might be legitimate for us to make it a mandatory requirement.
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Can we strongly encourage our employees to be vaccinated?
In short, yes! Encouraging your staff to protect themselves and everyone else in the workplace helps to reduce the risk of infection that you will have identified in your health and safety assessment.
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Should we allow paid time off or other incentives to employees to encourage vaccination?
Setting out your reasons for promoting the vaccine in a policy for your employees would be a great way for you to tell your staff of your position on time off for vaccination appointments. If you decided that you wanted to offer incentives as the uptake of the vaccine in your workplace was low, you need to consider what approach you would take towards your employees with protected characteristics which prevented them from receiving the vaccine.
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We’ve been asking staff to have a twice weekly lateral flow test; can we remove this need for fully vaccinated staff?
Again yes, but with some caveats as we’re now heading into sensitive personal data territory. To collect vaccination status data an employer must satisfy itself that the collection is necessary and relevant for a specific purpose (and that there is a legal basis for doing so). The obvious legal bases are to enable you to comply with your legal obligations (the Health and Safety at Work Act 1974) and that there is a substantial public interest in so doing, putting preventing the spread of coronavirus and protecting your employees at the heart of your actions.
Giving staff the option to demonstrate that they have been fully vaccinated (rather than requiring them to do so) will be far less risky and gives staff the choice to decide if they want to share that information. Lastly, when collecting this data, you will have to comply with your general data protection obligations, already in place: carrying out a DPIA, collecting only the limited information required and holding it for no longer than necessary (as well as ensuring you have fulfilled your obligations on informing your employees). You may find that a vaccination policy will support you in implementing a gradual return to the office.
Written by Robin Hassan
Principal at My Inhouse Lawyer
One of our values (Growth) is, in many ways, all about cultivating a growth mindset. We are passionate about learning, improving and evolving. We learn from each other, use the best know-how tools in the market and constantly look for ways to simplify. Lawskool is our way of sharing with you. It isn’t intended to be legal advice, rather to enlighten you to make smart business decisions day to day with the benefit of some of our insight. We hope you enjoy the experience. There are some really good ideas and tips coming from some of the best inhouse lawyers. Easy to read and practical. If there’s something you’d like us to write about or some feedback you wish to share, feel free to drop us a note. Equally, if it’s legal advice you’re after, then just give us a call on 0207 939 3959.
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