COVID-19: Updated Guidance For Employers

In response to the emergence of the Omicron COVID-19 variant, the Government has implemented a number of precautionary measures. England will move to its COVID-19 winter (plan B), in an attempt to combat the spread of the new variant. It will see the return of work from home guidance starting from today, Monday 13 December 2021. The guidance states:

“Office workers who can work from home should do so from Monday 13 December. Anyone who cannot work from home should continue to go into work - for example, to access equipment necessary for their role or where their role must be completed in person. In-person working will be necessary in some cases to continue the effective and accessible delivery of some public services and private industries. If you need to continue to go into work, consider taking lateral flow tests regularly to manage your own risk and the risk to others”

For those who attend their workplace, the Government will continue to provide up-to-date Working Safely guidance on how employers can reduce the risks in their workplace. Businesses should consider this guidance when preparing their health and safety risk assessments, and put in place suitable mitigations

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What does this mean for employers?

Businesses have a legal duty to manage COVID-19 risks for both their employees and customers.

This means employers should be taking steps to ensure employees can work from home where possible, as they did during lockdowns 1 & 2. When it is impossible for someone to adequately do their job from home, they may still be called in to work provided the employer has adequate COVID-19 secure health and safety measures in place.

Employers should particularly consider whether home working is appropriate for workers facing mental or physical health difficulties, or those with a particularly challenging home working environment – Please see below The Equality Act 2010.

Can you insist that your staff are COVID-19 vaccinated?

While the UK’s COVID-19 vaccination programme continues to be implicated Nationwide, with booster jabs for now being at the forefront of the campaigns. There is currently no legislative power for the UK Government to mandate COVID-19 vaccination across the board, so it would require further primary legislation. However, the extent to which the omicron variant of the virus will further mutate is still unknown, as such the government is asking that both employers and employees apply caution towards reducing the spread and protecting the NHS.

Organisations that are obliged to vaccinate.

The government has the power to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination in England and Wales (section 45C, Public Health (Control of Disease) Act 1984 (PHA 1984)). It has opted to use that power from 11 November 2021, anyone who works indoors in a Care Quality Commission (CQC) registered care home must be fully vaccinated against COVID-19 unless they are exempt. Categories of exemption can be found here.

Earlier this year the Equality and Human Rights Commission said it was “reasonable” for certain sectors, such as health and social care, to require staff to have COVID-19 jabs.

What about the businesses operating outside of regulated sectors?

There is a belief among some employers that encouraging their employees to accept the vaccine is the best strategy for returning to work safely. Employers are taking seriously their legal obligations under the Health and Safety at Work Act 1974 and Management of Health and Safety at Work Regulations 1999 to protect the health and safety of their workforce and provide a safe working environment. There is a common belief that trying to ensure that staff are vaccinated mitigates this risk.

Employers should still prepare for and manage the COVID-19 impact on their workforce, remembering that the vaccine is just one measure of protection. Other COVID-19 measures, including social distancing, home working, staggered working hours and mask-wearing, all of which are scientifically proven to mitigate the risks of transmission of the COVID-19 virus. These alternative safety precautions are important considerations, especially if some employees are exempt from vaccinations due to underlying medical conditions.

There has been public and media attention towards some businesses purported seeking or enquiring with solicitors what are the legal implications of introducing a “no jab, no return to office policy”. However, this is a very sensitive area, employers that feel strongly about requiring employees to take the vaccination will need to have a compelling argument for doing so, because vaccination is only one way to address this risk, and vaccination is not 100% effective. You can read our Q&A about Vaccinations in the Workplace here. 

An employer outside of the regulated sector that is considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should consider the following:

• Vaccination is not suitable for everyone.
• Requiring an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal.
• A mandatory vaccination requirement could indirectly discriminate against employees with certain protected characteristics.
• Currently, private vaccination is not available. Individuals must wait their turn, in order of priority, to be offered vaccination.
• Employers may find it difficult to justify a mandatory vaccination requirement on health and safety grounds. Although vaccination reduces the chance of the vaccinated individual contracting COVID-19, the extent to which vaccination reduces transmission is still under review.
• Imposing a mandatory vacation requirement could result in negative publicity for the employer which could have a detrimental impact on business profitability, employee retention and recruitment.
• There is a very small risk that vaccination could have long-term, adverse side effects for some individuals, which may concern a cautious employer. An employee who was compelled to receive the vaccine and who suffers an adverse reaction may attempt to bring personal injury proceedings against the employer.
• Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required.
• The data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy and retaining that data.

Potential Discrimination Issues

Jobs advertisements asking candidates to be vaccinated has risen 189% over the last 3 months. A mandatory vaccination requirement for employees or job applicants is likely to amount to a provision, criterion or practice (PCP) that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic, contrary to section 19 of the Equality Act 2010 (EqA 2010) (Indirect discrimination)

A vaccination requirement could put employees with one of the following protected characteristics at a particular disadvantage:

• Age - The Government prioritised older individuals for vaccination. As private vaccination is currently not available, employees outside of a priority age group are disadvantaged compared with those that are. In addition, younger workers may be more cautious of being vaccinated due to the lower risk of hospitalisation, intensive care admission and death from COVID-19 and the slightly higher risk of blood clots from the vaccination.
• Disability - Some of the vaccines in production are not suitable for certain individuals with suppressed immune systems. An employee with certain allergies may also be advised against vaccination due to the risk of anaphylaxis. Other employees may refuse the vaccine for mental health reasons, or due to a phobia of needles.
• Pregnancy or maternity - Current government advice is that pregnant women should be vaccinated, however, previously, the advice was that pregnant women should not be vaccinated.

The change in advice may lead to some pregnant employees being cautious about getting vaccinated. Indirect discrimination does not apply to the protected characteristic of pregnancy and maternity (section 19(3), EqA 2010). However, a woman who is disadvantaged by her employer’s vaccination policy due to pregnancy or maternity could bring an indirect sex discrimination claim.

• Sex - Women may wish to delay vaccination because they are trying to conceive. A December 2020 survey of 55,000 people found that the group most likely to refuse vaccination were 18 to 34-year-old women, with many citing worries about fertility. Current guidance is that there is no need to avoid pregnancy after vaccination and there is no evidence that the vaccines have any effect on fertility or on the chances of becoming pregnant.
• Race - Vaccine take-up in previous national vaccination programmes has been lower in areas with a higher proportion of ethnic minorities. The greater hesitancy in minority ethnic groups was due to low confidence in the vaccine, distrust, access barriers, inconvenience, socio-demographics and lack of communication from trusted providers. COVID-19 vaccine uptake in black ethnic minority groups over-50s is only 64% compared with 93% of white peers.
• Religion or belief - It possible that the protected characteristic of religious or philosophical belief could protect certain religious or moral objections to the vaccine. For example, gelatine derived from pigs is often used in mass-produced vaccines. This may be a concern for Muslim, Hindu, vegan or vegetarian employees. Although there is no gelatine in the COVID-19 vaccines currently available, shark liver oil is being considered as an adjuvant for one of the new vaccines. Other employees may reject the vaccine because embryonic tissue was used to test or develop the vaccine.

Therefore, employers need to ensure that any mandatory vaccination requirement is justifiable as a proportionate means of achieving a legitimate aim. Even where an employer does not mandate vaccination, it should ensure that its workplace policies do not indirectly discriminate against unvaccinated employees.

Direct Discrimination

An employer’s actions in requiring vaccination of a particular employee, or in treating them less favourably because they are unvaccinated, could directly discriminate against them contrary to section 13 of the EqA 2010. Unlike indirect discrimination, direct discrimination cannot be justified unless it is on the ground of age

Summary

At present, our advice for employers is to ensure they have Covid-secure measures in place and continue to prioritise the safety of their staff, as well as communicating with them to understand what they’re comfortable with.

COVID-19 in the work place is a minefield that understandably is causing employers and employees concern. For advice on a case by case basis please contact Gaynor Beckett (Head of Employment Law) on Gaynor.Beckett@AticusLaw.co.uk