Paman Singh from Law at Work (www.lawatwork.co.uk) examines the challenges care homes could face as the COVID-19 vaccination rollout gathers pace.
After an incredibly challenging 2020, news of a vaccine is the light at the end of a very long tunnel for many care providers. While the initial distribution will be slow and steady, the distribution to many care homes is already well underway and we are told that a vaccine will eventually be widely available for the majority of the UK population.
With so much still unknown, there has already been speculation that, as the vaccine roll out gathers pace in 2021, restrictions will be placed on those who don’t receive it. Some have even posited that international travel and entry to certain shops and restaurants will be reliant on proof of vaccination.
For care homes, which are required by law to ensure all “reasonably practicable” steps are taken to reduce workplace risks, there will almost certainly be a positive obligation to strongly recommend that all employees get themselves vaccinated. An issue made all the more per- tinent given the obviously vulnerable nature of care home residents.
However, even in care homes, and despite the obvious benefits, there remain those who, for reasons varying from religious beliefs to health concerns, don’t want to take the vaccine when it becomes available. This clash in stances could present a very challenging and complex issue for care home managers.
The Government has made it clear there will be no mandatory vaccination scheme, and an employer cannot physically force an employee to take it up. However, they may have a responsibility to furnish employees with guidance and advice on the benefits the vaccine will bring. Active engagement in this process will be important as it may be necessary for employers to provide evidence of this to demonstrate compliance in line with their duty under the Health & Safety at Work Act.
While mandatory vaccination will not be placed into law, employers will likely have some manoeuvrability.
If a business can show that the requirement for an employee to take the vaccination is a reasonable management instruction, then any refusal which is unreasonable by the employee could justify disciplinary action, perhaps all the way up to dismissal. This would likely apply in circumstances where the employee’s role puts them in a position where close contact is unnavodable, such as delivering care.
Although it may feel like an employer, especially one in the care sector, would be on firm ground requiring that its employees were vaccinated against a disease that has killed more than 1.6 million people worldwide, much of the legal argument will depend on the particular circumstances, including the employee’s reasons for refusal. For refusal to be deemed reasonable there would need to be significant justification. For example, a fear of needles wouldn’t cut it but, where someone suffers from trypanophobia – a fear of needles to such an extent that they could be defined as a disabled person under the Equality Act – they could be justified in refusing the vaccine.
Similarly, certain religions may take exception to the use of animal products in the vaccine. However, attempts by vegetarians, vegans or even anti-vaxxers to justify their stance on similar grounds is unlikely to be successful.
A further consideration for businesses is that an employee might refuse on the basis that the contents of the vaccine are incompatible with their medication, or that their health condition otherwise renders them unable to have the vaccine. Where their health condition amounts to a disability, this introduces additional considerations for the employ- er, particularly as they have a duty to make reasonable adjustments for disabled employees.
One thing is for sure, the situation is not as straightforward for employers as it may appear. It is going to be vital that employers initiate open and sensitive conversations with employees to avoid a situation where a genuine reason for an individual not taking the vaccine is over- looked or dismissed.
The additional work around these conversations will be crucial too and businesses should consider engagement with any trade unions and employee representatives now if mandatory vaccination is a consideration. Likewise, having a robust vaccination policy in place, which clearly establishes what is required and by whom, as well as what the process is in the event of non-compliance, will be crucial and is something firms should be considering and seeking advice on now.
Like so much of 2020, this area of employment law is thus far unprecedented, so it is crucial that businesses take appropriate and pre-emptive steps to put them in the strongest possible position. It is a high profile and extremely complex area which will almost certainly throw up difficult decisions. By seeking advice early, care home managers can enter into conversations with employees before the issue becomes even more urgent.
Law At Work will continue to monitor the situation and is available to answer queries that businesses may have. For more information, please visit www.lawatwork.co.uk.