Vaccines and Testing – What To Do When Staff Don’t Want It

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Andrew Willis

Andrew Willis

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02 Jun 2021

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A number of Covid-19 vaccines have been approved for use in the UK. The virus remains a present threat, with many employers asking how they can help to reduce the virus’ spread. Workplace COVIID-19 testing and vaccine take-up come to mind. However, not everyone will be willing to be vaccinated.

What are your options? What makes staff refuse in the first place? We’ll answer these questions and more in this article…

In-house testing

To facilitate mass testing and aid its success, it is advised that employers implement a COVID-19 testing policy which employees should have easy access to. The policy should set out why testing at work is encouraged, who will manage the process (third party/trained staff), where the testing will take place and how, as well as details on how results will be processed. Importantly, in-house testing should not replace any COVID-secure measures in place, such as social distancing and sanitising.

If your staff are allowed to return to work, you may have already begun mass testing employees for COVID-19. Mass testing in the workplace means you can spot asymptomatic positive cases of the virus. This reduces the possibility of it spreading to other members of staff.

If you’re in this position, you can start to encourage employees to participate in regular testing when it’s offered to them. We emphasise the word “encourage” here. This is because it’s unlikely there will be a clause you can add into an employee’s contract forcing them to be tested. To enforce it is therefore likely to be an unlawful change to contract terms and conditions.

If enforcing in-house testing on staff is not advisable, staff can refuse to be tested if they don’t want to be. Some members of staff may find the testing process, of taking throat and mouth swabs, to be very uncomfortable. Others may feel it unnecessary if they are not experiencing any symptoms.

In this case you should attempt to reason with the employees. Put the point across to them that the implementation of in-house testing is a crucial one. It will prevent asymptomatic cases from going undetected, reducing the spread of the virus.

Disciplinary action may be necessary in cases of repeat refusals. This is because an employee who refuses to be tested runs the risk of unknowingly putting their colleagues’ health and safety at risk. This should be a last resort.

Vaccines

The biggest question many employers will have is whether they can legally oblige their employees to take the vaccine before returning to work. As with testing, the Government has not chosen to make COVID-19 vaccines mandatory. This is being considered for workers within the care sector, however. A five-week consultation, now closed, has been conducted into whether it should be mandatory for staff in older care home settings to be vaccinated. The results of the consultation are pending.

Those within the care sector may already be contractually permitted to make vaccines mandatory. This is because of their specific circumstances, to ensure patient safety. It is advisable, however, that you check your employees’ contracts. This will help you determine whether you can require them to take the vaccine or not. If so, refusals can be dealt with as a breach of an employee’s contract terms, which could lead to dismissal.

For the majority of employers, the most appropriate course of action will be to, again, encourage staff to take the vaccine.

Employees may refuse to take the vaccine because they’re not contractually obliged to do so. If this happens, you should think about sharing information with staff about the vaccine from official sources. This reduces the likelihood of them refusing to take the vaccine because of fears stemming from the spread of false information.

The vaccine may be seen as much more medically invasive when compared to testing. For this reason, refusal can be related to reasons which should not be disregarded, eg allergies, pregnancy, etc. Therefore, we don’t advise taking disciplinary action against employees. Doing this may mean employers risk facing claims of discrimination or unfair dismissal. This could include constructive unfair dismissal.

To deal with this, take similar steps in dealing with a refusal to engage in testing. This includes sending out information from reliable sources. In addition, you can keep staff working from home for longer or test staff at work. This will reduce the chances of the virus spreading within the workplace.

Expert support with vaccines & testing

As the vaccine rollout continues, you’ll likely meet resistance from members of staff. Whether they have differing opinions on vaccines, are refusing to return to work, or are clashing with other employees, we can help.

Our HR and employment law experts are waiting to take your call. Get advice today on 01455 858 132.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in employment law, HR and commercial legal advice for small & large organisations across the United Kingdom.

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