There has been a lot of publicity from business owners making “no jab, no job” statements recently. As we move further towards our new normal, we thought a few comments on this would be useful for clients to consider. Also, we provide a practical summary of the current workplace testing arrangements.
“No Jab, No Job!”
Employers have a duty under the Health and Safety at Work Act 1974 to take all reasonably practicable steps to ensure the health, safety and welfare at work of all their workers. You may also owe duties to customers and others attending your premises, such as a shop or restaurant. Therefore, protocols dealing with infection prevention should continue, such as maintaining social distancing, wearing face coverings and washing hands regularly as appropriate, until we hopefully reach the end of these measures in June.
ACAS has released guidance stating that employers should support employees in being vaccinated but that “employers cannot force employees to be vaccinated”. We expect that government guidance will eventually be issued on this topic, but in the meantime, making it compulsory in your work environment is likely to get you into legal wrangles.
The complications with mandatory vaccinations in the workplace:
You may have an argument that your H&S duties go so far as to mean you are required to mandate vaccines for those working on site. This is particularly the case if the work involves exposure to the vulnerable. However, the UK government does not plan to make the vaccine mandatory and it is not compulsory for NHS frontline workers. It follows that employees in other less risky settings should not be held to a higher standard.
If you need to mandate the vaccine, a very strong justification would be required where other safety measures alone are not sufficient. Additional considerations would be the data protection implications of gathering evidence of compliance and the potential for discrimination claims if non-vaccinated employees were prevented from participating at work normally. A compelling risk assessment would be required and a clear policy statement outlining your approach – please ask us for advice on how to approach this.
If you have employees traveling internationally as part of their work, you have a legitimate and unavoidable need to meet any vaccine requirements of the destination. This may mean that, rather than mandating the vaccine in your workplace, you have to be selective about allocating employees to certain assignments if they are unable to comply. Instead of asking staff to share their vaccine status, you could have a checklist or risk assessment for a particular assignment or client and ask individuals to sign a declaration that they are able to meet the requirements.
We recommend you adopt an approach to encourage rather than mandate vaccination. This can involve being supportive in terms of paid time off to attend vaccination appointments and backing this up with encouraging internal communications and sound Covid-safe workplace practices (for as long as they need to last).
The Government is encouraging employers (but mot mandating them) to facilitate non-symptom testing of their workforce on a regular basis.
There was a deadline of 12 April by which you could register to get free lateral flow test kits. Obviously this deadline has passed so it is now a question of either:
- Using a 3rd party to access tests for staff https://www.gov.uk/government/publications/list-of-private-providers-of-coronavirus-testing/list-of-private-providers-of-coronavirus-testing
- Asking staff to obtain and use their own test kits – which they can get hold of free: https://www.gov.uk/order-coronavirus-rapid-lateral-flow-tests
- Using a public ‘symptom free’ testing site – which are provided by each local authority. Go to your local authority web site to find out where.
For a smaller business, the most practical / cost effective methods are either 2, or 3. Setting up testing in the workplace has lots of requirements for space, equipment and privacy etc that is probably not practical.
Our experience of companies incorporating testing in to their covid-safe policies is mixed. From a practical perspective, it is worth considering in order to try and identify / isolate symptom free cases to avoid them passing on to other staff who would get symptoms. This is obviously what the authorities are trying to achieve.
What are the rules is someone test positive in the workplace?
Importantly, since this is not mandatory, you do not have to send home others working with a colleague who tests positive via a Lateral Flow Test, provided that other covid safe / distancing measures are in place. If someone does test positive via a LFT, they have to self-isolate with anyone else in their household and get a PCR test. If the PCR test is positive, the test and trace service will kick in. This is when having a Covid safe environment becomes important: the Government says that “ By following the COVID secure guidelines, employers can reduce the risk of co-workers having to self-isolate if a member of staff tests positive for COVID-19,or is identified as having had close contact with someone who has tested positive” See https://www.gov.uk/guidance/nhs-test-and-trace-workplace-guidance. This site also tells you what else you have to do as an employer.
The biggest inhibitor to people self-isolating is the impact it will have on their pay – this is likely to be a question that comes up with staff if you are wanting them to do regular tests.
The question of whether you can insist employees undergo tests is a common one, but the answer is not all that clear! Making it a condition of their continued employment is not likely to be something you can impose on existing employees – so the advice is to consult and encourage employees to play their part and try to deal with objections.