Solicitor Paul Clark considers the legal ramifications around Covid-19 jabs for workers…
Although the future will hopefully be more positive than the title might suggest, as we pick our way through the government’s roadmap to leaving lockdown, it is likely to be testing rather than vaccination that holds the key to reopening the workplace.
While a vaccinated workforce may be least vulnerable to infection, no vaccine is 100% effective and vaccination alone will not stop transmission of the virus.
There are also legal challenges for businesses pinning their hopes on vaccination – few employment contracts will provide for employers to insist that staff be vaccinated meaning this will only be possible where employees agree to the requirement or it amounts to a reasonable instruction.
Convincing staff to accept vaccination as a condition of employment may prove tricky given that the government cannot make it compulsory.
Meanwhile, it is unlikely to be reasonable for most employers to insist that an employee is vaccinated so that they can return to the workplace, particularly when working from home and furlough offer more reasonable alternatives.
Vaccination will need to be genuinely necessary for performance of duties, such as traveling abroad, or the protection of vulnerable persons, such as in health or social care settings, or because other Covid-security measures will not work.
There is also the risk of discrimination to consider as some individuals will be denied vaccination on health grounds while others may object for religious or even philosophical reasons.
Staff testing, on the other hand, is more likely to be a reasonable instruction in the circumstances.
Employers are currently eligible for the government’s workplace testing program if they have 50 or more employees who cannot work from home and it is likely that lateral flow testing will be extended to more businesses.
Mandatory testing is not necessarily lawful though and still requires justification. Employers will need to have reasonable objectives and consider data protection implications, preferably setting out both in a dedicated Testing policy.
Refusals will need to be reviewed in the light of reasons and personal circumstances. Disciplinary action will remain a last resort. Nevertheless, testing will be with us soon and offers a route back to the workplace while vaccination is rolled out.
For advice on employment law or HR issues, email email@example.com or contact a member of the employment team at Jacksons Law Firm.
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