What are the dangers of forcing staff to be tested and/or vaccinated for COVID-19?

What are the dangers of forcing staff to be tested and/or vaccinated for COVID-19?

January 10, 2021

With the announcement on Monday 4th January that early years settings were to remain open to all despite the national lockdown, many are asking for Early Years’ staff to be offered vaccines by the Government.

Whilst we do not know whether the Government will change their minds, many employers are starting to consider their options.

Some are asking for the lateral flow testing kits to be diverted from the closed secondary schools and sent to early years settings. Some are asking for more asymptomatic PCR tests being made available. Others are buying testing kits from the private sector, which given that you would need to test at least once a week, would get very expensive, very quickly.

In this article we explore whether employers can require their staff to be tested and then vaccinated for COVID-19.

So what about testing?

We think that right now employers can and should only encourage staff to allow themselves to be tested. If you have access to local community testing centres when non-symptomatic, the employer can encourage the staff to take up the offer.  Perhaps they might give paid time off to enable it to happen in daylight hours or release people early if quiet.

When it comes to buying and administering kits privately, the employer can encourage the employee to take the test but cannot insist.

If by April sufficient numbers have been vaccinated (to no ill effect) we may be in a stronger position to make it a requirement. Regardless of timing we would need to demonstrate that we have taken time to understand any reservations.

Moving forward we believe that an employer’s ground for requiring employees to be tested will become a Health and Safety at Work 1974 matter, and the duty of care to self and others that all employees have. At that point it can become contractual to submit to testing.

Let’s look as to whether an employer can require an employee to be vaccinated

Inviting employees to agree to be vaccinated for COVID-19 is likely to be considered a reasonable request as it would reduce the potential risk to employees’ health and encouraging them to do so would also been seen as positive.

However, if employees do not agree to a vaccine, employers are limited in what they can do. Everyone recognises that vaccines are a personal issue and many employees will feel it is not the employer’s position to insist on vaccination. For some its not vaccines, but injections that are the issue.

There may also be issues and complaints relating to discrimination on grounds of religion or belief (peoples’ ethical beliefs in regard of the make-up and testing of vaccines can be an issue), disability and age; constructive dismissal; and human rights issues. Employers should also be aware that employees may have a medical reason for not getting the vaccination. At the time of writing this blog it is just starting to come out as to whether pregnant women should be vaccinated when offered.

It is currently unlikely that an employer would be able to use health and safety grounds to justify taking disciplinary action against an employee for refusing a vaccine, particularly in the early stages of the vaccination programme.

However, this may change over time, when more is known about the effects of the variants of Coronavirus and the effects of the vaccination programme. But there is still likely to be a very high threshold to meet to justify such a policy.

If you need any assistance with managing your employees during a pandemic, please do not hesitate to contact us on 01527 306066.



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