The Covid-19 vaccination rollout has provided a ray of optimism after a challenging year for us all, but it has also raised some tricky workforce issues. Here, we discuss the responsibilities of employers with regards to employee conflicts around the vaccine and the key considerations to ensure your policies are legal and fair.
A mixed-race female nurse wearing a protective face shield, surgical mask, and protective gloves administering the COVID-19 vaccine to a senior black man in his home. iStock/SolStock
The last couple of weeks have seen many businesses wondering what their rights are when it comes to the Covid-19 vaccine. Do employers have the right to enforce coronavirus vaccinations in the workplace? Can we really dictate the message of ‘no jab, no job’ to our employees?
The key here is to honour the employee’s right to choose.
After what has been an incredibly challenging year for many businesses, with so many employees working remotely, taking time off to care for others, and indeed taking long-term sick leave, contemplating mandating the vaccine is perhaps understandable but is it really the right thing to do?
In our opinion, forcing employees to be vaccinated – especially in the absence of the government mandating vaccination in the UK population – risks triggering a plethora of issues that would result in the employer being laid bare to several civil and criminal claims. That being said, the unprecedented nature of Covid-19 has blurred the line of acceptance, magnifying the discussion, and leaving employers to question, what is reasonable to expect of employees during a pandemic?
We spoke to Freeths, our legal partner, about the complex topic of mandatory vaccines and they told us, “a number of organisations are currently considering this approach. The UK government (unlike other countries) has not introduced a mandate for high-risk industries (i.e. healthcare). Rather than implement blanket policies across the entire workforce (which are likely to come up against legal hurdles) employers are advised to carefully consider the requirements of each role and document any reasons for mandating the vaccine, for example lowering the risk to other members of staff or vulnerable customers or service users”.
We believe the key here is to honour the employee’s right to choose. Saying that though, both our team at HRi and, indeed our colleagues at Freeths, agree that employers should encourage (but not force) employees to take the Covid-19 vaccine. Encouraging employees to be vaccinated to protect themselves, colleagues, clients or customers, and others in the workplace is likely to be considered a reasonable step. Employers may wish to consider a program to educate staff about the vaccine to ensure employees are informed about the pros and cons. The government is likely to issue guidance for employers on this in due course.
Refusal to have the jab
Despite the unquestionably positive news of the Covid-19 vaccines, the pace at which they entered development – and have subsequently been rolled out – has led to the circulation of a great deal of misinformation and, consequently, mistrust in the safety of the vaccines. Of course, let’s not forget that there are many people who are also needle-phobic too and will have high anxiety over having a vaccine.
Interestingly, a review by the University of Liverpool found the proportion of respondents willing to be vaccinated has actually decreased over time (79% in early phase studies versus 60% in later studies). They also found that the proportion not willing to be vaccinated has increased (12% in early studies versus 20% in later studies).
Indeed, it should also be noted that since the announcement of the first Covid-19 vaccine, online searches for more information have increased exponentially, as have searches for the vaccine risks. Clearly some people are concerned about the vaccine and certainly no one should be forced into accepting it. Legislation specifically provides that a person must not be required ‘to undergo medical treatment’, which makes vaccination a completely individual choice. This could be based on safety concerns, or due to other protected characteristics. Without a doubt, the employer must honour the employees’ choice.
When we asked Freeths about this they said, “employees may have a range of reasons for refusing the vaccine, some of which are protected by the Equality Act 2010. Some employees may have religious or philosophical beliefs for refusing the vaccine. The NHS guidance does make it clear that there are no animal products in the vaccines, however some vegans may disagree with vaccinations that have been tested on animals. At the moment, the NHS guidance also states that pregnant women will not routinely be offered the vaccine, unless they are at high risk of Covid-19 because of where they work, or they have a health condition that means they’re at high risk of serious complications”.
Freeths also warned, “employers should carefully consider whether blanket vaccine policies could adversely affect people with a protected characteristic. Such policies may be discriminatory, and employers should consider whether a mandatory vaccination policy could be objectively justified. Employers should always weigh up individual concerns against their business reasons for mandating the vaccine. It is important that all views (whether linked to a protected characteristic or not) are treated with respect to avoiding eroding mutual trust and confidence, a term that is implied by law into every employment contract”.
With this in mind, here are five ways to manage Covid-19 vaccination conflict in your workplace.
1. Continue to provide a safe environment
Regardless of the number of employees who accept the vaccine, you must ensure your workplace remains Covid-19 secure on a long-term basis. Support the need for excellent hygiene practices, provide plenty of hand washing facilities and maintain overall standards for health and wellbeing, irrelevant of a person’s personal choice.
2. Encourage flexibility
A business has a duty of care to its employees, which means taking the steps reasonably possible to ensure their health, safety, and wellbeing. Support individuals who wish to have the Covid-19 vaccine by offering flexibility in their working day and paid time off to attend medical appointments. Ensure employees are aware of how the vaccinations program is working should they wish to participate. In a study by Gartner, 60% of HR leaders recently said they will encourage employees to get vaccinated against Covid-19, but they will not make it mandatory.
3. Educate employees
Provide evidence and easy-to-understand information to enable staff to make an informed decision about the vaccine. For businesses that are keen for their workforce to be immunized, look at developing a non-contractual policy that outlines the benefits and make the vaccine process as seamless as possible.
4. Listen to your employees
Listen to any concerns of your employees and take them seriously – no matter what your beliefs are. If they are needle-phobic or have anxieties about the vaccine, consider helping them get the right access to care. There are some fantastic VR therapies out there that can really help people who are scared of needles.