Can employees be prevented from attending work, or restricted in their duties, until they provide proof of vaccination and, if so, what are they entitled to be paid?
This article first appeared in Practical Law’s Employment and Discrimination Blog. You can read the full version here
There are few who have been unaffected by the COVID-19 pandemic. Fewer still who wouldn’t wish to see our current restrictions lifted to enable a return to the freedom enjoyed before March 2020.
These constraints have resulted in rising unemployment, closures of businesses, damage to physical and mental health, illness and frustration among many.
It is broadly accepted that vaccinations will play an important role in the easing of national restrictions and the gradual return to normal working life. Yet vaccination alone will not eradicate this virus from the population.
The government has made it clear that it has no plans to force anyone to take a vaccine. This does not however mean that an employer is necessarily breaking the law if they insist that an employee is vaccinated, in order to work for them. It is possible for an employer to make it a requirement.
Where it is objectively reasonable to require vaccination before returning to work, an employer may lawfully refuse to allow a worker to work. If the employee has legitimate reasons for rejecting the offer of a vaccine, they may face suspension on medical grounds. If they do not, the suspension could be connected with disciplinary action for failing to follow a reasonable management instruction.
Restricting an employee to alternative duties rather than suspension is also an option in these circumstances. This is the objectively more sensible and reasonable approach, provided it is operationally possible.
Pay during absence
Statutory sick pay remains available, although it does not extend to those who are fit to work but are unable to because their employer requires them to have been vaccinated.
The Coronavirus Job Retention Scheme remains operational until the end of April 2021, or longer if extended further. This is a short-term option but is unlikely to be of assistance several months from now, when vaccination becomes widely available for the working population and such requests to be vaccinated become feasible.
If the employee is suspended on medical grounds, as their presence creates a health and safety risk, they are entitled to be paid in full for up to a maximum of 26 weeks.
Suspension for failing to comply with a reasonable management instruction also requires the employee to be paid in full until the disciplinary procedure concludes. Such action should not be taken as a disciplinary sanction, but to ensure the safety of others at work. In extreme circumstances, an employer could consider the employee’s absence unauthorised and not pay them at all.
It remains to be seen whether the government will introduce legislation or guidance on these issues.
Although requiring vaccination may be lawful in certain circumstances, it isn’t necessarily the best approach. The business will want to consider the precedent it wants to set, the risks of imposing a blanket policy and the impact on reputation and staff morale.
Other measures include mobilising home working, ensuring social distancing and mandating face masks, among others.
Other employment rights
In most employment contracts, preventing someone from coming to work risks leaving the employer in breach of that contract. If the employee resigns in response, or is dismissed, the risk of exposure to legal action is high.
Requiring the disclosure of proof of vaccination is also not a straightforward issue. An employee’s medical information is special category data and there are many associated legal issues to factor in, not least rights governing privacy. Implementing a policy prematurely will inevitably leave certain categories of people facing disadvantages, creating a risk of indirect discrimination connected with age, sex or disability.
It would also not be good practice to dismiss, discipline or stop paying an employee who refuses to return to work with legitimate safety concerns.
There remain some unknowns in relation to the levels of protection against severe illness and transmission provided by the various vaccines.
When a business implements a policy mandating a vaccine, it will need to think very carefully about the information it uses for justification.
While a blanket requirement for vaccination is possible for employers to implement, there are many circumstances which give rise to legitimate challenge and create genuine risks. There need to be tolerances and flexibility built into this approach and the starting point of any advice on this issue would be to encourage vaccination, educate on the benefits of vaccination, and support staff to access the vaccine, but not to make it an absolute requirement.