1. Can we / should we require employees to get a vaccination before returning to the workplace?
The current government information is that people will not be required to take the vaccine generally: it will be a personal matter for people to decide. The government is also determining the order in which people will be able to get it.
Therefore, based on current information, we do not think employers should require employees to get the vaccine before they can return to work. There are numerous legal issues in doing so:
- there is a risk of breaching the implied term of trust and confidence with employees by requiring them to do something which is not reasonable, which could lead to them claiming constructive dismissal;
- there are potential data protection issues (https://www.gqlittler.com/resources/news-and-views/data-protection-issues.htm#) as to whether employers really need such information – depending on the government guidance as to how we will ultimately all be able to return safely to the workplace, there may be no legitimate legal basis for processing such information; and
- there are risks of discrimination: some employees will have medical conditions amounting to a disability in law which may mean the vaccine is not appropriate for them, it may be against some employee’s religious or philosophical beliefs, some employees may be pregnant and are therefore currently not advised to have it, etc.
Instead, employers would be much better off following the government guidance on when people are allowed to return to work and what the rules and requirements are for them to do that. This will ensure everyone’s safety and minimise all of the risks above.
2. Can we require all employees to return to work once the most vulnerable people have all had their vaccines?
The answer to this is, we don’t know yet. Employers will be best minded to await further information from the government as to the strategy for getting everything more “back to normal” in 2021. We are yet to see how smooth the roll out of the vaccine will be, and yet to see whether the government will want restrictions to remain in place for people until a lot more people are vaccinated or whether there will be a relaxation of the rules once the most vulnerable in society have been vaccinated. We would recommend that employers act in line with the government’s guidance on who should go to work and just wait for now until we have more information. Click here (https://www.gqlittler.com/resources/news-and-views/tricky-categories-of-employees.htm) for more information on which categories of employees can return to work.
Whilst we all wait for more information, employers might want to start turning their thoughts more to whether they are going to continue to offer remote working, and in what form, once we are all allowed to go back to our workplaces. Take a look at our working from home policy checklist (https://www.gqlittler.com/resources/news-and-views/working-from-home-policy-checklist.htm). There is likely to be a hugely increased demand by employees for this in some form going forward, and this is the ideal time to start working out what you want to offer and ensuring you have a good longer-term plan for any remote working than the rushed arrangements put in place in March 2020!