COVID-19 vaccinations: Employee rights in the workplace

• Can employers force employees to take COVID tests to be able to return to the workplace?
• COVID-19 vaccinations have not been made compulsory for workers
• Remote working could be here to stay in the post-COVID future
• Employers and HR teams have been encouraged to make long-term commitments to safeguarding employee mental health
• Eligibility criteria for SEISS could be made available to previously excluded self-employed workers

With non-essential businesses reopening today, 12^th April, and the UK’s vaccine rollout well underway, employers and HR teams are considering the best way to transition back into the workplace post-lockdown.

According to recent reports “no jab, no job” policies are being debated amongst industry leaders; however, changes to contractual agreements create “a minefield of legal and ethical issues for employers”, says Hannah Netherton, an employment law partner at CMS.

It has become increasingly apparent that the easing of lockdown restrictions won’t trigger an immediate return to ‘business as usual’. While many people will likely continue working from home, those returning to the office may be concerned about their wellbeing once COVID restrictions are lifted.

To combat some of these challenges, the UK government said that they would be ramping up the availability of COVID testing kits for companies across England.

Before now, only UK businesses with more than 250 employees qualified for workplace testing. However, Kate Palmer, HR Advice and Consultancy director at the global employment law consultancy, Peninsula, said that “firms with more than 50 employees can now access lateral flow tests.”

The government hopes that by expanding rapid workplace testing, scientists will be able to quickly identify spikes in the infection rate and reduce the transmission rate among workers, particularly those who work in essential services.

Businesses can apply for free rapid testing kits which can be taken at home, though companies must register their interest before 12^th April to obtain free access. Over 60,000 businesses have registered their interest so far.

But while the British government is encouraging employers to implement COVID testing measures in the workplace, Kate Palmer advises UK companies to proceed with caution when enforcing testing at work as it is not a legal requirement.

As COVID testing is not mandatory by law, employees who feel forced to take a test could file claims for harassment and assault.

However, stemming transmission in the workplace will be of grave importance for firms unable to work remotely.

How should employers manage workplaces post-COVID?

Although mass testing is seen as the answer to turning the tide on the pandemic, many people have refused to take tests or have gone to work after being in close contact with someone displaying symptoms due to financial hardships.

COVID’s impact on the economy, mental health and social connections will likely take years to heal completely. Employers have been advised to consider their staff’s emotional wellbeing as much as their physical health to ensure a healthy future for all.

UK companies considering implementing a mandatory COVID testing policy should justify the reason for this to their employees and what is expected of workers to avoid “facing costly claims for constructive dismissal at a later date,” says Kate Palmer.

Instead of immediately following the dismissal route, employers should have a constructive discussion with an employee who refuses to get tested.

Kate Palmer advised employers to encourage staff to take a COVID test and remind them that non-compliance could result in them being refused entry into the workplace due to other colleagues’ health and safety.

If an employee tests positive for COVID-19, it is the employer’s responsibility to make sure that person was made aware of any new measures or procedures before taking the test.

The same can also be said about the implementation of COVID-19 vaccine policies and protocols in the workplace.

Can employers force their employees to have COVID-19 vaccinations?

After the UK achieved its extraordinary vaccine feat in mid-February, government officials said they hoped to vaccinate the entire adult population by autumn.

With that being said, does that mean your employer has authority over mandating vaccines in the workplace to protect their employees, customers and business?

According to a Telegraph report earlier this week, ministers are currently debating whether employers can enforce vaccine requirements in the workplace under Health and Safety laws.

As it stands, no public organisation, including the NHS has made COVID vaccinations compulsory for employees and as it is not law, employers cannot legally force employees to get vaccinated to return to the workplace.

To avoid opening a legal can of worms, Gillian McAteer, head of employment law at Citation, advises UK companies against introducing compulsory vaccine requirements for workers.

Instead, Gillian McAteer said employers should outline the harmful effects of COVID-19 and promote the benefits of taking the vaccine to encourage workers to get vaccinated when offered the opportunity to get inoculated.

Even if the UK government makes vaccinations mandatory, which is rather unlikely as it raises concerns over ethical and personal rights, some workers may be medically exempt.

Other individuals may also be opposed to vaccines due to religious or ethical beliefs, which makes mandating vaccines more complicated in the employment relationship context.

Employees with strong ethical and religious beliefs will be further protected by the Human Rights, Equality Act 2010 and the Health and Safety at Work Act 1974.

It seems that many firms are working around vaccine and testing headwinds by exploring whether their business can permanently move into a remote-working environment.

Is remote working here to stay in the UK?

COVID’s impact has dramatically impacted the working patterns of millions of employees in the UK, and many employees have been working from home for most of the last twelve months.

Before the pandemic, remote working was relatively unheard of in the UK. However, it appears that it is here to stay in the post-COVID world as many businesses don’t feel the need to rush back into the office.

By working remotely, employers also avoid new workplace legislation, including implementing disinfection procedures and other COVID-secure workforce policies, as well as the urgency to get vaccinated.

Working from home also reduces the risk of exclusion in the workplace. Employees with strong ethical and religious beliefs or those who are medically exempt and unable to take the vaccine are likely less likely to feel alienated, which should foster greater productivity.

COVID’s impact on employee wellbeing

While reducing the risk of transmission is key to reopening a safe working environment for staff, employees’ wellbeing should not be overlooked by employers.

Dave Capper, CEO of Westfield Health, said the impact of the pandemic on employee mental health “may not be visible, let alone heal, for many years.”

He added: “In 2021, UK companies will need to support wellbeing from the top down and HR teams should take the necessary steps to protect staff both physically and mentally.”

It comes as scientists establish symptoms of long COVID, which is said to vary from parosmia to long-term lung problems and breathlessness.

According to a recent study by the Royal College of Psychiatrists, COVID patients that have suffered severe symptoms are far more likely to develop trauma-related mental health conditions.

Dave Capper hopes that when the UK turns the tide on the pandemic, businesses will make long-term commitments to supporting employee’s mental health and wellbeing.

Support for self-employed workers

Many self-employed workers have made claims against the UK government for indirect discrimination due to the level of financial support they have been offered during the pandemic.

More than 62 MPs have urged Chancellor Rishi Sunak to implement a new proposal to support the three million self-employed workers excluded from the eligibility criteria for the Self-employment Income Support Scheme (SEISS).

The cross-party group of MPs have made calls for the Chancellor to make excluded groups of self-employed workers eligible for the next round of SEISS, which covers the February to April 2021 period. It was revealed during the Spring Budget that the fourth grant can be claimed in late April.

Rishi Sunak confirmed that there will be a fifth SEISS grant covering May 2021 to September 2021, further details will be revealed in due course.