As the COVID-19 Omicron variant spreads at pace across the country, and the risk of yet more restrictions heightening, more and more employers have had to rethink their plans for in-person Christmas parties, meetings, working from the office, and other workplace activities for the remainder of this year and next.

The UK Government has announced that vaccines continue to remain our best line of defence and is pursuing ambitious plans to get all adults who had their first two vaccination doses a booster jab by year end, while calling all adults who have not yet received their first or second dose of the vaccine to come forward to help protect themselves and others, the practicality of these ambitions are yet to be tested.

With growing levels of uncertainty, employee health, safety and wellbeing continue to be top priorities for all employers. As such, business leaders are likely to encourage their employees to get vaccinated or get booster jabs to ensure workplace safety for all. With that in mind, Anil Champaneri, Senior HR Consultant and Technical Lead at Alcumus, offers guidance on how HR professionals can ensure to keep workplaces safe and encourage employees to get vaccinated.

Here are some key things to look out for what you can and can’t do if an employee refuses to get vaccinated.

Can:

1. Persuade people that the vaccines are safe and that it’s in everyone’s interests to have one so that we can get ensure a certain level of safety for themselves and their colleagues, friends and family.
2. Have a vaccination policy so staff are clear on business’ expectations.
3. Pay staff for the time off for vaccination appointments so they do not suffer a financial detriment.
4. If you operate a care home, your employees (and see also below) needed to be fully vaccinated (unless exempt) by 11 November 2021.
5. Parliament has now approved plans to make COVID-19 vaccination mandatory (unless exempt) for all patient-facing health and social care workers in England including nurses. Official guidance is pending in the New Year. Failure to be fully vaccinated by the designation deadline (currently April 2022) could result in employment being terminated. As an employer, you would of course have to look at all the alternatives before making that decision and, naturally, seek advice/involve your HR team or HR consultant. If an employee is dismissed, make sure that they are offered an appeal and that they are paid for their notice as per their contract of employment
6. Outside of those areas/sectors where vaccination is now mandatory, ideally, an employer may want to be aware of the vaccination status of their employees. Employees’ health information falls into the category of special category personal data. As with the processing of all special category data, employers must identify a lawful basis under UK GDPR. If they cannot do so, any processing is in breach of the UK GDPR. It is worth flagging that the ICO guidance states that the sector in which the employer operates, the nature of the work carried out by its workers, and the health and safety risks in the particular workplace, will be relevant for employers in deciding whether they have legitimate interests to record the vaccination status of their staff. The guidance gives the examples of staff who are legally required to be vaccinated against COVID-19, work somewhere where they are likely to come into contact with those infected with COVID-19 at work, or who could pose a risk to clinically vulnerable individuals. An employer in such cases could use this as justification for collecting employee vaccination status.

Can’t:

1. Tell employees they must be vaccinated. The exception to this is for those working in care homes and for all patient-facing health and social care workers in England. With respect to care homes, this also includes those required to enter a care home for work such as hair stylists, contractors and trainers. Friends, family (who also may be unpaid carers) and essential care givers will not need to show proof of vaccination or medical exemption.
2. Discriminate against staff who refuse to be vaccinated. They may be some staff (if under 18 years of age) who have yet been offered the vaccine. Some staff might refuse vaccination on religious or philosophical belief grounds and as such will be protected under the Equality Act 2010. There is also a small group of people who are unable to be vaccinated for medical reasons including severe allergies so could be exempt of from having a vaccination. If your policy adversely affects people from a protected group (race, age, sex, disability and religion or belief being the most likely) it will potentially be indirectly discriminatory. In those sectors/areas where vaccination is mandatory, it is a different story.
3. Relax your efforts to make your workplace ‘Covid secure’ as, until the vast majority of the population are vaccinated, these precautions still remain the best way of protecting your staff.

Given the potential to get this very wrong, we strongly recommend that you take HR advice before taking any action against someone who has refused to be vaccinated.