With the roll-out of the government’s mass vaccination programme raising the prospect of repatriating legions of home workers later this year, employers are starting to examine what that process might look like.
Similar to the inoculation project itself, there are an array of logistical, legal and healthcare issues to consider. Much of this will focus on what the vaccines can and can’t do, and how employers use their advent to restore “normal” operations.
Chris McDowall, employment partner at Anderson Strathearn, said the scope for making definitive decisions is limited at the moment by evolving government guidance and changes in scientific understanding. But with the legal requirement to provide a safe workplace potentially conflicting with equality, privacy and data protection obligations, now is the time to review these policies through the lens of a post-pandemic world.
“Planning is absolutely key to ensuring compliance with your legal obligations, and also to give comfort to your employees and client base that your strategy has been well thought through,” he said.
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As things stand, the general view is that employers will not be entitled to require inoculation among staff.
This is based on the presumption that vaccines only protect the individual from becoming severely ill, as opposed to preventing them from passing the virus on to others. The scientific evidence on this is currently unclear, but were it to emerge that vaccination stops the spread of the coronavirus, then the onus could shift in favour of the need to provide a safe working environment.
Questions could also be raised if, as has been suggested by some airlines, that “no-vax, no-fly” rules could come into place. If all airline customers must have an inoculation, it would be difficult to justify exemptions for flight crew.
The STUC trade union is strongly encouraging all workers who can to get vaccinated, but acknowledges that some will be unable. One of they keys to a successful return to the workplace, according to the STUC and other experts, will be careful consultation with staff on their views.
“Some workers may have medical issues which mean they cannot get the vaccine, and some workers may not be eligible for the vaccine for quite some time," an STUC spokesperson said. "No worker should be disadvantaged if they have not yet had the vaccine.”
Tony Haddon, head of employment at Brodies, said there has already been a good deal of publicity given to employers who have stated they will not hire those who have not been vaccinated. Such a policy is “very likely to be a discriminatory situation”, particularly when it involves people who have a medical condition, are pregnant, or have certain beliefs protected by the Equality Act that prevent them from getting an inoculation.
He believes the more common issue will be that of indirect discrimination.
“Employers may be justified in saying that someone who has not been vaccinated can’t carry out certain duties or be in certain places, such as in places where they come in contact with the public, or closed meeting rooms,” Mr Haddon said. “Depending on the job role, doing that could create a case for arguing that the employee is no longer able to carry out their duties.”
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Most if not all organisations will be keen to ensure as many staff as possible are vaccinated, and may therefore look at introducing policies to promote this.
Going forward, this could include the opportunity to get the jab on-site. Though the coronavirus vaccines are not yet commercially available, this could become the case in the future if season booster shots are required.
But to do this, employers will have to collect Covid-19 information from staff. Ann Sammon, employment partner at Pinsent Masons, said organisations must carry out assessments on why this information is required, how long it will be retained and who will have access to it.
“Typically, outside the healthcare, medical and social care sectors, we haven’t seen data related to vaccinations – for example, MMR or flu – captured, so any employers outside these sectors wishing to capture data in relation to Covid-19 will need to be prepared to explain why this is being treated differently – and it may well be justified, depending on the particular circumstances."
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