What every business needs to know about COVID vaccines and employees

Vaccinations are being rolled out, fast. But what does this mean for you and your team? We’ve compiled some answers here to questions you might be asking.

Can you force an employee to get a vaccine?

 No. Employees should be able to choose for themselves whether or not they receive medical treatment, including whether or not they have a vaccine.

Should you allow paid time off work for an employee to get a vaccine?

The government has not released any guidance on how employers should handle the situation where staff need time off work to get the COVID Vaccine. It is possible that guidance will be issued, but for the time being we can advise on the basis of existing law.

The starting point is that there is no obligation set down in law to say you must allow employees paid time off to attend medical appointments, including a vaccination. However, it is possible that your contracts or policy documents, or your past customs and practices, allow employees paid time off for this.

With this in mind, you should (as a minimum) apply the same approach that you would use for time off for other occasions where the employee is not ill but requires time to see a medical practitioner – for example, a dental appointment or standard medical check-up. So, you might:

• Allow paid time off
• Allow paid time off but ask the employee to make the time back up later
• Require the time to be taken as holiday or unpaid leave.

The difficulty with requiring the time to be taken as holiday or unpaid leave is that it increases the risk of an employee refusing to have a vaccine. Unlike a dental check-up, it is possible that the employee will have little say in the date and time of their vaccine appointment and therefore cannot easily avoid the need to take time off work.

If they feel that they cannot afford to take time off unpaid, they may decide not to get the vaccine – which potentially puts them and other members of your workforce at risk. You may therefore decide that encouraging and enabling staff to get the COVID vaccine is part of your health and safety obligation to staff and something that should be factored into your risk assessments.

Another difficulty, particularly in these early stages of the vaccine, is that the employees who are invited to vaccine appointments may be in a priority group because they have a health condition that makes them clinically vulnerable to COVID. If this is the case, their health condition may amount to a disability and there may be an expectation that you will allow paid time off work as a reasonable adjustment for their disability.

Can you ask an employee to attend a vaccination when they’re on furlough?

If the employee is being furloughed due to COVID, then they should be able to attend a vaccination appointment whilst also on furlough because this shouldn’t amount do doing work or providing a service or benefit for you.

Can you ask an employee to change their vaccination appointment?

 Probably not. The current vaccination system is under strain, with deliveries of vaccines arriving at fairly short notice and GP Practices doing their best to timetable vaccination appointments to get through priority patients and use up the vaccines without any wastage. It is unlikely that an employee will be able to choose their appointment time or change it to fit in with their work commitments.

Unless there are exceptional circumstances, you should not refuse time off for a vaccination appointment. If you do so, you may cause a breakdown in trust and confidence between you and that employee (and potentially other members of your workforce). If the employee is particularly upset or worried about the situation, given the seriousness of the pandemic, it is possible that they may resign and claim constructive dismissal. Depending on the nature of your business, you may also find that you face negative PR if disgruntled employees speak to local press or air their feelings on social media.

What can you do if an employee refuses to get a vaccine?

As above, employees should be able to choose for themselves whether or not they have a vaccine. It would be unreasonable to impose a disciplinary sanction on an employee for refusing to have a vaccine.

However, if you pay sick pay that is over and above Statutory Sick Pay (SSP), you may be able to withhold the element of enhanced sick pay in circumstances where an employee’s sick leave could reasonably have been avoided if they had taken the vaccine. In order to apply this rule, you should:

• Make all reasonable efforts to encourage staff to have the vaccine, including allowing for paid time off to attend a vaccine appointment
• Clearly communicate this change to your sick pay policy
• Consider each case on its facts – why did the employee refuse the vaccine, why are they now off work and is it reasonable to withhold sick pay from them?

If someone who has been shielding has the vaccine, can you require them to come back to work?

Unfortunately, the COVID vaccine doesn’t guarantee protection and so just because a shielding employee has had the vaccine it doesn’t mean that they can come straight back to work. You would need to risk assess their situation and potentially obtain updated medical advice from their doctor as to whether it is safe for them to return to work or not.

As always, please contact us for help with any HR or employment law matter.