As organisations and individuals adapt to a new, post-pandemic normal, taking steps to reduce the risk of COVID-19 transmission and infection has become a universal fact of life. For employers, this has created a specific legal obligation in light of their duty of care to safeguard the health & safety of employees, customers and visitors.
The following guide for employers and HR personnel looks at the need for organisations to introduce a clear COVID-19 vaccination policy and what to include.
Why your organisation needs a workplace vaccination policy
Under the Health and Safety at Work etc. Act 1974, all employers are under a statutory duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees, as well as taking all reasonable steps to ensure that anyone affected by their business, including visitors and service users, are not exposed to risks to their health or safety.
The statutory duty to ensure the health and safety of employees and the public does not necessarily extend to allowing employers to compel their staff to be vaccinated against COVID-19. With the exception of care home staff, at the time of writing, there are no legislative provisions that can compel someone to be vaccinated. Still, even though employers cannot mandate vaccination for staff in most cases, they can encourage them into being immunised by introducing a COVID-19 vaccination policy.
By putting in place a written policy that sets out the employer’s commitment to creating a COVID-19 secure workplace — ensuring staff have access to reliable information about the vaccine to enable them to make an informed choice, and even allowing paid time off work for vaccination appointments — this is more likely to encourage uptake. This type of policy, together with other health and safety measures that should be introduced to help eliminate or control the risk of the spread of the virus, such as stricter personal and workplace hygiene, will also help to allay any safety concerns employees may have around returning to work.
Specifically, in relation to care home staff working in care homes registered with the Care Quality Commission (CQC), the government has introduced regulations to protect residents. As from November 2021, this means that anyone working in a CQC-registered care home in England for residents needing nursing or personal care must be fully COVID-19 vaccinated with both doses, unless they have a medical exemption.
This will apply to the majority of people who enter care homes for work, including staff, agency workers, contractors or self-employed people, such as tradespeople, occupational therapists or hairdressers, and even volunteers. In due course, the double-jab policy for care home staff may be extended beyond care homes to other settings where people vulnerable to COVID-19 receive care, such as domiciliary care and wider healthcare settings, including making vaccinations compulsory for NHS workers.
If an employer feels it is important for their workforce to be vaccinated, it is advisable to discuss this with staff before formally introducing a COVID-19 vaccination policy. The employer could also discuss the introduction of a vaccination policy with the organisation’s recognised trade union or employee representatives to help agree an approach that is appropriate for both the staff and the business, and in line with any other existing policies, such as the disciplinary and grievance policy.
By sharing impartial information about the importance and benefits of vaccination before formally introducing a COVID-19 vaccination policy, this can not only help staff to make informed decisions, but helps maintain good working relationships and minimise potential disputes or objections.
Discussions should also include matters such as whether staff will need time off work to get vaccinated and the rate of pay for vaccine-related time off. To encourage vaccination, employers might consider paying staff their usual rate of pay if they are off sick with any side effects from the vaccine, instead of statutory sick pay, and not counting vaccine-related absences in absence records or towards any ‘trigger’ system when managing absences.
Additionally, employers should discuss whether they plan to check vaccination status, and if so, how data collected on staff vaccinations will be used. Employers must have particular regard to their duties under the General Data Protection Regulation (GDPR), where an individual’s vaccination status falls within a special category of personal data concerning the private health of individuals. Even where employers wish to enquire about the vaccination status of their staff so as comply with their statutory duty to ensure a safe workplace and to minimise the risk of exposure to the virus, this still raises privacy issues under GDPR.
Sensitive and personal health data of this kind should only be collected for specific legitimate purposes and then, only to the extent that it is necessary and proportionate to do so. If vaccination data is collected, it should only be used for lawful and non-discriminatory purposes. It must be kept secure and subject to existing duties of confidentiality owed to staff, and retained for the minimum period of time required to fulfil its legitimate purpose.
What should a workplace vaccination policy include?
The contents of your vaccination policy should reflect the specific needs of your organisation, meaning there is no single, standard format for a COVID-19 vaccination policy. As a matter of best practice, the following sections should generally be considered for inclusion:
Purpose of the policy
This section should outline the organisation’s approach to staff vaccination, why this is important, the purpose of the policy and to whom it applies.
If the policy has been agreed to or implemented following discussions with a trade union or employee representatives this process should be recorded. The policy should also clarify its non-contractual status, reserving the right to modify its contents at any time so as to adapt to changing circumstances and business needs in accordance with the latest government-issued health guidance. This may include introducing a requirement for mandatory vaccination in certain roles, for example, customer-facing roles or roles requiring international travel.
It is also important to explain the use of the policy in conjunction with any policy on health and safety. It should be made clear that the vaccination policy is designed to supplement the health and safety policy, but does not replace this. In this way, especially where the employer has introduced stricter personal and hygiene measures in response to the pandemic, it’s made clear to staff that these measures must still be followed. This is because there’s a chance someone might get or spread COVID-19, even if they’ve been double vaccinated.
Staff rights & responsibilities
This section should set out the voluntary nature of the policy, expressing the health benefits for individuals, whilst respecting the wishes of those who choose not to be vaccinated.
It can be helpful to expressly acknowledge the concerns that some staff may have about being vaccinated, making it clear that they will not be treated unfairly or in a discriminatory way because of their COVID-19 vaccination status. These concerns could include:
- if they have a health condition
- if they’re worried about an allergic reaction or other side-effects
- if they’re pregnant or breastfeeding, or thinking about getting pregnant
- if they do not think the vaccine is safe, effective or necessary, or
- for religious, ethical or any other personal reasons.
The policy should also set out an expectation that everyone at work should be treated with dignity and respect in relation to their vaccination decision, where bullying or harassment, or any other unwanted behaviour by co-workers over vaccination decisions, will not be tolerated.
Information on vaccine safety
This section should set out or signpost staff to vaccine safety information annexed to the policy, or to the latest NHS guidance, including information about:
- allergic reactions
- reported side effects
- vaccinations for the clinically extremely vulnerable
- vaccinations for those with existing health conditions
- vaccinations during pregnancy and breastfeeding.
Time off and pay
This section should explain whether time off will be allowed for attending vaccination appointments during normal working hours, as well as the organisation’s procedure for taking time off and whether staff will be entitled to paid time off to attend these appointments.
If paid time off is allowed, the rate of pay for attending appointments should be set out, including the rate of pay for time off due to any side effects of being vaccinated against coronavirus. The policy should also explain the impact on an individual’s absence record in relation to time off for vaccination appointments or vaccine-related sickness absence.
Processing personal data
This section should explain whether the employer plans to check vaccination status, and if so, how data collected on staff vaccinations will be used. Under GDPR, employers must be transparent about data collection, via a privacy notice, as to their reasons for checking or recording employee vaccination status and how the information will be processed.
Implementing the workplace vaccination policy
Many employers will understandably be keen for their staff to benefit from immunisation, where having a full complement of vaccinated staff will mean a significant reduction in the risk of coronavirus and less cause for concern for the employer when it comes to transmission in the workplace. Still, in the absence of COVID-19 vaccination becoming a legal requirement, an employer cannot currently force an employee to be vaccinated without their consent.
This means that, in most cases, with the exception of CQC-registered care homes, the purpose of a COVID-19 vaccination policy will simply be to provide information about the vaccine, and to encourage or incentivise staff to get vaccinated, for example, through paid time off work.
In the context of high risk workplaces, such as where staff have to come into contact with vulnerable service users — and the potential for the government to legislate to make vaccinations mandatory for all healthcare workers — a workplace vaccination policy, including the threat of disciplinary action, could potentially be used to mandate vaccination. However, unless and until new laws are introduced, employers should proceed with caution before using the threat of punitive measures to force existing staff to get vaccinated.
In some cases, requiring an employee to have the vaccination could expose the employer to a risk of unlawful discrimination on grounds of disability, age, pregnancy, religion or belief. In addition, if an employer were to dismiss an employee for refusing to be vaccinated, they may also expose themselves to a claim for unfair dismissal. Even in cases where there are pressing health and safety reasons that may justify vaccination, the employer must first consider alternative options such as amended duties or redeploying the employee to a lower-risk role.
Legally speaking, there is nothing stopping employers from introducing a “no jab, no job” clause in the contracts of new recruits, although careful analysis of the health and safety risks attached to each job role would need to be undertaken before introducing such a clause. This is because any failure to do so could be construed as discriminatory if the applicant can prove that they are exempt from having the vaccine or unable to access it. In particular, a “no jab, no job” policy could disproportionately affect young people who are last in line to get the vaccine.
If an employer is considering introducing mandatory vaccination at work, even if there are significant health and safety risks that need to be controlled, or introducing a “no jab, no job policy” for new recruits, expert legal advice should always be sought. The importance of adopting a fair and non-discriminatory approach when it comes to mandating vaccination in the workplace, certainly as the law currently stands in the UK, cannot be underestimated.
DavidsonMorris’ employment lawyers work with employers to provide comprehensive advice on all aspects of workforce management and legal compliance. Our specialists provide guidance on specific areas of risk such as developing and implementing policies and procedures to promote best practice and reduce legal risk within the organisation, including vaccination policies. For expert advice, contact us.
Vaccination policy FAQs
Is ‘no jab no job' policy lawful?
It is not unlawful in itself for employers to introduce a no jab, no job policy, however, consideration would need to be given to avoid discrimination risks, for example against those exempt from having the vaccine or unable to access it, for example, those under 18.
Can an employee be dismissed for refusing to be vaccinated?
Depending on the facts of the matter, it may be possible for an employee to be dismissed for refusing to be vaccinated provided the dismissal process was fair and the employer would need to show that there were pressing health and safety reasons and no other options, such as amended duties or redeployment, were available.
Last updated: 23 August 2021