Life after Lockdown 3: the impact of the vaccine and rapid testing on returning to the workplace

So how should employers be planning for the year ahead? What can we learn from the last time workplaces reopened following lockdown, and how might the availability of the vaccine and rapid testing change the employment law and HR landscape? This article offers answers to some of the key questions our clients have been asking us about this topic.

Should or can we encourage vaccination?

Although the government has not made vaccination compulsory, it is positively encouraging it. Celebrity endorsement on social media is widespread. But what can or should employers be saying about it? According to the CIPD, an association for HR professionals, “the wisest approach for employers to begin planning for the wider rollout of the vaccine is to encourage staff to be vaccinated and publicise the benefits to improve take up of the vaccine when offered through the NHS”. Employers should nonetheless consider their approach to this carefully, ensuring any communications are aligned to current public medical advice and sensitive towards staff choosing not to be vaccinated for personal or medical reasons.

Can we offer the vaccine to staff on a voluntary basis?

Although the vaccine is not yet commercially available in the UK, it is expected that companies will be able to purchase it at some point in the not too distant future. Earlier this year, the Health Secretary, Matt Hancock, said it was “highly likely" there will be a dual vaccination programme for flu and COVID-19 in the future. Employers may therefore be able to offer it as part of their employee benefits package.

According to a 2021 Bird & Bird survey of 400 businesses based in London/the South East, three quarters (75%) of senior decision makers said they would purchase a vaccine for staff if it became an option, with more than two in five (44%) saying they would offer this to all roles, and three in ten (31%) saying that they would only offer this to specific roles. This may therefore be something that employers consider when planning their longer-term COVID strategy.

Can we make vaccination mandatory?

This has perhaps been the most vexed question on this topic to date. Public sentiment is overwhelmingly in favour of vaccination. However, those employers who have publicly announced mandatory vaccination policies, like Pimlico Plumbers for example, have met with mixed reactions.

When operating any mandatory vaccination programme, employers should be flexible in their approach, factoring in the health and needs of individual staff and reason for refusal. There are a variety of potential legal risks for employers to navigate which include:

• Indirect discrimination (such as on the grounds of disability, age, race, religion/philosophical belief, sex, pregnancy or maternity)
• Potential claims for constructive unfair dismissal (on the basis of breach of trust and confidence) and unfair dismissal claims where employees are dismissed for refusal to comply with company policy
• Personal injury claims in the event an employee is compelled to have the vaccine and suffers an adverse reaction
• Detriment/unfair dismissal claims for raising health and safety concerns about the vaccine
• Allegations relating to breach of human right to respect for private life

Ultimately, the question of mandatory vaccination has not been tested in the UK courts. Blanket ‘no jab no job’ policies are very unlikely to be justified, but mandatory vaccination may be justified in narrow circumstances, for specific roles or sectors where there is a heightened risk of spreading the virus.
Clearly this will be very situation-specific. Employers should carry out a risk assessment taking into account the role in question, the working environment and effectiveness of COVID-secure measures and availability of workplace testing, the risk posed by the staff member to others and vice versa. Mandatory vaccination may also be justified by necessity, such as where an individual is required to travel aboard as part of their role and will need a ‘vaccine passport’ in order to do so.

The circumstances when mandatory vaccination may be justified are likely to be narrow. Employers will need to ensure that where mandatory vaccination for certain employees is deemed necessary, the justification is clearly documented and the situation is kept under close review as the situation evolves.

If we make vaccination mandatory and employees refuse, what recourse do we have?

Employers cannot force employees to be vaccinated without their consent. They could however potentially argue that making vaccination a condition of work amounts to a reasonable management instruction intended to protect the health and safety of employees and others they come into contact with at work. Depending on their roles, non-vaccinated employees could potentially be prevented from performing some or all of their duties. If the employee has legitimate health reasons for rejecting the vaccine, they may face suspension on medical grounds. If they do not, the refusal could lead to disciplinary action and ultimately dismissal.

Employers will be in a stronger position if they are able to rely on a workplace policy or express provision in the employment contract making vaccination mandatory. In the absence of this, it may be more difficult to fairly and reasonably discipline or dismiss the employee. In some cases, it may be permissible to require evidence of vaccination as a condition of employment for job applicants and require regular boosters in line with public health advice as a term of employment for new employees. From a practical perspective, securing existing employees’ consent to such a term is likely to be more difficult.

However, employers should proceed with caution and the legal risks set out above should be considered carefully. Before taking any disciplinary action, consideration should first be given to whether there are any alternative solutions, such as allowing the employee to work from home, conducting regular testing and additional health and safety measures in the workplace. Each case should be assessed individually. Ultimately this is an untested area of law which we expect will develop rapidly over the course of this year as workplaces reopen. Employers should monitor developments closely and be ready to adjust their approach accordingly.

Can we ask applicants or existing staff if they have been vaccinated?

Yes, provided there is a good reason for doing so and data protection rules are complied with. An employee’s vaccine status is health data which is considered ‘special category data’ for these purposes. In practice, an employer should not seek this information unless it is necessary and proportionate to do so. For example, if the employees in question are working from home or unlikely to come into contact with each other or customers or suppliers whilst carrying out their duties, requesting this data is unlikely to be justified.

In all cases, employers should only collect and retain the minimum amount of information needed, ensure that the use of the data is necessary and relevant and have due regard to the security and confidentiality of the data in line with ICO guidance. See our COVID-19 data protection guidance for more detail.

Are employees entitled to paid time off to be vaccinated?

Employees do not have a statutory right to paid time off to attend vaccination appointments and will be entitled to their usual sick pay in the event of any vaccine-related ill effects which render them unable to work for a day or two afterwards. However, ACAS guidance suggests that to encourage staff to be vaccinated, employers might consider paid time off for vaccination appointments, paying staff their usual rate of pay if they are off sick with vaccine side effects and disregarding any vaccine-related sickness in absence records or towards any 'trigger' system in sickness absence policies.

We anticipate that the majority of larger employers will, as a minimum, offer paid time off to staff to attend vaccine appointments, to reap the longer-term benefit of a vaccinated workforce. These measures may also be prudent where vaccination is mandated. From a practical perspective, employers would also be wise to consider the impact of absences on staffing requirements, which may become particularly relevant over the coming months as employees book their second doses and the vaccine is rolled out to the wider working population.

If employees have been vaccinated, can we ask them to return to the workplace?

Any return to the workplace must be in line with the latest government guidance. These rules apply to employees regardless of whether or not they have been vaccinated. The government’s ‘roadmap out of lockdown’ indicates that the guidance to work from home where possible will remain in place until 21 June 2021 at the earliest.

Special care and consideration should be given to the return of those who are clinically vulnerable, some of whom may not be able to have the vaccine for medical reasons. The government has paused shielding for the clinically extremely vulnerable and is no longer advising that they do not attend the workplace if they cannot work from home. However, guidance from the Health and Safety Executive states that employers should take every possible step to enable them to work from home. Vulnerable employees may qualify as ‘disabled’ for the purposes of the Equality Act 2010, placing a further duty on the employer to make reasonable adjustments which might include allowing the employee to stay at home or varying their working hours to avoid public transport rush hour, for example. Vulnerable employees may understandably be anxious about returning and so employers should discuss their working arrangements with them individually and plan what support will be available.

Can we relax any of our social distancing measures?

No. Whilst initial research results are promising, England's deputy chief medical officer Professor Jonathan Van-Tam has warned that scientists do not yet know the impact of the vaccine on transmission and those who have received their vaccine should still follow government guidance on social distancing.

The vaccine roll-out and availability of rapid flow testing will be key elements for employers to factor into and potentially supplement their strategies to facilitate a safe return to the workplace. However, neither presents a ‘silver bullet’. Employers must continue to put measures in place to ensure their workplaces are COVID-secure and wait for further government guidance – the current signs are that social distancing is likely to be in place for many months yet.

What other practical steps should we be thinking about?

• Consultation with employees and representatives: consider how the further steps being taken to manage the risk of COVID-19 in the workplace and any specific issues relating to vaccines and testing will be communicated to and discussed with staff, taking into account legal obligations to consult about health and safety matters
• Vaccination policy: consider whether to adopt a policy encouraging employees to be vaccinated where possible, setting out any specific arrangements for vaccinations (e.g. paid time off) and details of any mandatory vaccination requirements (where applicable)
• Internal communications strategy: it will be important to ensure the messaging is consistent and aligned to current government medical advice
• Approach to third parties such as contractors, agency workers and visitors: consider if any third parties will be included in any vaccination or testing policy

Concluding thoughts

Lockdown 3 has been likened to ‘Groundhog Day’ and in many ways, employers find themselves back where they started a year ago, planning for another reopening of workplaces and safe return of staff who have been furloughed or working from home. But there are some key differences this time around. Most employers are now well-versed in operating COVID-secure workplaces and have the additional option of mass rapid testing as part of the potential range of measures. The rollout of the vaccine is also cause for huge celebration and optimism. It also presents employers with a number of novel practical and legal challenges to navigate.

If experience from the last year has taught us anything, it is that we are not out of the woods yet. Even if the government meets its vaccination target of 31 July 2021, the effects of COVID are likely to be felt long afterwards. Social distancing will be with us for months, if not years. Little is known of the longer-term health impact of COVID but statistics just published by the ONS indicate that those aged 35-49 are mostly likely to report symptoms of ‘long-COVID’, potentially impacting their ability to return to work. Further research is also awaited on the impact of the vaccine on transmission and new variants. A slow, phased return is inevitable and employers will need to take a flexible approach and be ready to adapt their plans at short notice as both the public health - and legal - situation evolves over the coming months.