The Impact of Omicron

The Impact of Omicron EPR law employment law solicitors

Written By David Evans

December 21, 2021

Introduction

The Impact of Omicron: Will some Employers Change Their Approach to Covid-19 Vaccinations for their Workforce in 2022?

2021 has seen the UK achieve mass immunisation against COVID-19. The availability of the vaccines has been instrumental in lifting restrictions, a bounce back in the economy and the ability of employers to welcome back employees into the workplace. However, the emergence of the Omicron variant is threatening to reverse many of these gains and is already having a profound economic effect. As we enter 2022 off the back of an accelerated booster program, will employers take a firmer line on their employees being fully vaccinated to minimise potential disruption to their businesses?

The Health and Safety at Work Act 1974 obligates employers to take reasonable measures to reduce any workplace risks. This duty gives employers reason for encouraging their employees to receive the COVID-19 vaccination to protect themselves and everyone else at the workplace. Furthermore, as COVID-19 is also a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (known as RIDDOR), employers are further strengthened to encourage employees to get vaccinated.

Employers have found that most staff are happy to be vaccinated against COVID-19, but there is still a significant minority who will be reluctant or refuse to have the vaccine. The justifications for this can be many and varied – including individuals who cannot have the vaccine based on medical grounds. There will also be some who can get the vaccination but will refuse it based on religious or philosophical grounds, or they may be concerned about any adverse effects. This latter aspect has been particularly prevalent amongst pregnant women. The Royal College of Obstetricians estimated that only about 10% of pregnant women in England had been fully vaccinated by the end of August (compared to 74% of those eligible to receive the vaccination).

While the government and health service is primarily responsible for combatting vaccination hesitancy, employers can undoubtedly play an essential role in supporting the promotion of COVID-19 vaccinations.

How To Implement A Vaccination Policy

Many employers have already started getting ready for the potential complications the COVID-19 vaccinations may have in the workplace and have implemented vaccination policies. The majority of these policies aim to encourage all employees to receive the vaccine when possible and accept that there are circumstances in which it is not appropriate.

Here are some factors for employers to consider when implementing a vaccination policy:

  • Understand the purpose and benefits of having a vaccination policy for the business, as requirements (and flexibility) will differ, not just from business to business but may also be different between business operations (customer facing, factory, office based etc)
  • Consider how special category data relating to employee’s health and vaccination status will be stored and processed to be properly protected.
  • Consider the potential issues that are likely to arise within your workforce and how these can be addressed to reduce workplace conflicts as part of your initial risk assessment
  • As an essential part of any justification will relate to health and safety, consult with any staff associations or unions before executing a policy of any kind or in the absence of any representative group with employees directly to identify any further issues as part of evaluating the risk assessment, further mitigations or support and increasing trust and “buy in”.
  • Listing the circumstances that the policy will need to be reviewed – such as when private vaccination becomes available or the level of infection subsides to a manageable level within society

When creating a vaccination policy, it should address the purpose and benefits of the COVID-19 vaccination. The policy should:

  • Explain that the purpose of the vaccination policy is to facilitate the health and safety of employees and for others entering the workplace – this includes clients, suppliers, and any other third parties
  • Provide information for employees on the COVID-19 vaccination and set out the employer’s stance in respect of associated workplace issue
  • Encourage the COVID-19 vaccination in line with public health advice while also acknowledging some employees will be unable or unwilling to get the vaccination for medical or other reasons
  • Highlight that the vaccination is not a substitute for other health and safety policies – including accordance with the COVID-secure guidelines

In order to include the scope of coverage, the following should be included in the policy:

  • List the roles and workplace locations that are encouraged to receive the vaccine and the reasons why
  • Whether there are any situations in which the employer requires an employee to be vaccinated and the justification for it – for example, close contact with others (factory/food processing environments, interaction with the clinically vulnerable etc), or travel may be an essential part of a job role, and an employee may need to be vaccinated to meet the entry requirements of another country
  • Whether the policy extends to every person that enters the workplace – including visitors, contractors, and any other third parties
  • Whether employees will be offered paid time off to attend vaccination appointments

One area which should not be overlooked when creating a vaccination policy is data protection and privacy. Therefore, the policy should include the following:

  • How the employer plans to use the employee vaccination data
  • Confirm how long the employer will retain the employee vaccination data
  • Outline which decisions the employer will make based on the vaccination data held
  • Confirm that the employer will keep any vaccination data they hold strictly confidential

Options For When An Employee Refuses The Vaccination

In the situation where an employee refuses to get their COVID-19 vaccination, the employer should seriously consider why they have come to this decision, any concerns the employee may have, and finding an alternative solution, in conjunction with other health and safety measures, such as social distancing, testing, PPE etc. In most cases, both sides may be willing to consider modifying the employee’s role or work responsibilities to facilitate remote working (on a temporary basis) or in a safer working environment.

If having unvaccinated employees in the workplace poses a threat to the health and safety of the wider workforce and/or wider disruption to their business, employers may decide not to allow unvaccinated employees to return to their place of work, at all.  If the alternative arrangements are not acceptable to the employee, this does create far greater legal risk for the employer. There are some sectors, such as health and care work, where compulsory vaccination has already been mandated. However, in most cases it will be more of a balancing act for employers if they are forced to consider a dismissal process. All employees with two years’ service or more have the right not to be unfairly dismissed and so an employer will need to show that the decision to dismiss is fair (justifiable on health and safety grounds and/or business efficacy) but that a fair procedure has also been followed prior to such dismissal, which will almost certainly include fair warning and efforts to encourage vaccination through education first, consultation with the employee, consideration of alternative options, consistency of treatment and opportunity to appeal. Special consideration will especially need to be given for those who object on genuine medical grounds and/or because of pregnancy. It would in our opinion be a very brave employer who chose to dismiss in these circumstances. It is noteworthy that pregnancy is a short-term clinical exemption from mandatory vaccination for up to 16 weeks post-partum for front-line healthcare workers (see below). There may also be discrimination challenges based on philosophical belief, religion and possibly age, but in general terms our view, at the moment, is that these are far less likely to be successful.

Closing Thoughts

There is no doubt that these policies are highly divisive, with countervailing and strongly held opinions on both sides. This is probably why most employers have sensibly avoided the issue to date. Presently, the government has only legislated for the COVID-19 vaccination to be compulsory for workers in registered care homes by the end of November 2021 and frontline NHS workers by April 2022.

Some employers (such as Google) have suggested making it mandatory for workers to get vaccinated before returning to the workplace. The Google vaccination policy was initially only applied to their campuses in America, but they have hinted this will be rolled out globally. This also reflects the US President’s executive mandate for companies with a 100 or more employees to require COVID-19 vaccinations.  Austria has become the first major European country that will be making vaccinations compulsory for the vast majority of its citizens from February 2022.

While it is unlikely that compulsory vaccination will become law in the UK, outside the current regulated sectors, it is not difficult to foresee with the emergence of Omicron that private employers will once again review whether they need to take a more forcible approach. Although a vaccination policy takes a lot of work, it can potentially be objectively justified as a way to achieve the legitimate aim of staff health and safety for staff and others entering the workplace and/or minimising business disruption. It does however need to be proportionate (i.e. going no further than is necessary and as part of a suite of control measures), sensitively introduced and implemented and ideally properly consulted on.

References

https://www.legislation.gov.uk/ukpga/1974/37/contents

https://www.legislation.gov.uk/uksi/2013/1471/contents/made

https://www.gov.uk/government/publications/covid-19-vaccination-guide-for-employers/covid-19-vaccination-guide-for-employers

https://www.bbc.co.uk/news/business-58006810

https://www.legislation.gov.uk/ukpga/2010/15/part/5/chapter/1/crossheading/recruitment

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