New law: Employers planning for employees who refuse a COVID-19 vaccination and for other vaccination issues

It appears that employers cannot insist that employees are vaccinated, unless the circumstances are exceptional. Exceptional circumstances could include where employees work closely together in confined spaces and cannot take the usual precautions such as using masks, socially distancing, washing hands, etc. Sanctions may also be lawful where the employees are working with particularly vulnerable people.

They are, however, entitled to ask employees why they do not want to be vaccinated. If the reasons given are unreasonable, that may justify sanctions such as disciplinary action, or changing the employee’s duties, on grounds the employee has refused a reasonable management request. Acas indicates that the following can be relevant when deciding reasonableness:

• Whether the employer has a vaccine policy.
• Whether being vaccinated is necessary to their job.
• Whether the employee's reason may be protected under anti-discrimination laws.

Employers should always take care that their actions do not breach an employee’s human rights and/or lead to claims for discrimination – particularly on grounds of age, religion, belief, disability, or pregnancy - or for breach of employment contracts. Note also that data collected from any questions or assessments may be personal data, which must be processed in line with data protection laws – and the employer’s data protection policy may need updating.

Employers may choose to carry out a campaign to encourage employees reluctant to vaccinate to change their minds, especially in risky sectors such as food manufacturing, cleaning, public transport, or essential retailing, through information and consultation.

Employers should note that such a campaign will be less effective if contractors and other visitors to their premises are not required to have had a vaccination.

In any event, given that the vaccine is a new development, employers may need to carry out fresh COVID-19 health and safety risk assessments, taking into account that some employees will refuse a vaccine, to identify measures to be taken. These could perhaps differentiate between those who have been vaccinated, those who refuse a vaccination, and those who are vulnerable to the virus. The fresh assessments could also take into account that there are now new strains of the virus that are more infectious.

A sensible precaution may be to introduce a vaccine policy, based on the results of the employer’s health and safety risk assessments and consultations with employees, backed up by staff training. This should be integrated with other relevant policies, such as the employer’s home and flexible working policies – which may themselves need to be updated.

Employers will also need to consider non-legal issues such as the effect of their plans on their reputation and on morale.

Operative date

• Now

Recommendation

• Employers need to consider their approach to employees who refuse to be vaccinated against COVID-19, the measures they should take given new developments generally, whether to introduce a vaccine policy and staff training, and whether other policies need updating.