What are the rights and responsibilities of employers and employees regarding vaccinations or testing for Covid-19?
Can employers insist that employees are tested or vaccinated, or could employees refuse? This is an area where health and safety and human rights issues conflict, creating a murky area with ifs, buts and caveats for all parties.
Unfortunately, it is also an issue that many people have strong feelings about. While it may seem logical to insist that all your employees must be vaccinated for health and safety reasons, to protect workmates and customers, patients or service users, the law is far from simple in this respect. It is no less complicated for employees who may feel that they wish to exercise personal choice in the issue.
If you want to resist testing or vaccination for personal reasons, as an employee you would need to have a legally-defensible position to refuse if your employer requests that all staff are tested or inoculated. If you work in healthcare, for example, or with people likely to be vulnerable to infection, your employer would have strong grounds to insist that all staff are tested or vaccinated. While it is not possible to force you to comply with such a policy, you may find yourself removed from front-line working, suspended or possibly dismissed from your post if you refuse.
If you are considering lodging a refusal or objection to testing or vaccination with your employer, it is recommended you consult an employment lawyer.
It is worth bearing in mind that it is very difficult to contest dismissal from employment as unfair if you have worked for the employer for less than 2 years, except in certain limited circumstances.
As an employer, you should be aware of your employee’s rights.
As yet untested in this respect, the Equality Act of 2010 protects a person’s philosophical and religious beliefs, which could be construed to encompass an employee’s anti-vaccination position, especially if the vaccine is thought to contain pig gelatin or other animal products. The Act also protects pregnant women, who may have legitimate concerns.
In their Guide on Article 8 of the European Convention on Human Rights, the ECHR stress “that an individual’s right to refuse medical treatment falls within the scope of Article 8… The right to respect for private… life.” This could be argued to include vaccinations.
However, while the employee’s right to refuse may be protected, you may well have a case to dismiss the employee to protect those who may come into contact with the employee.
If you find yourself in this or a similar position, take legal advice before proceeding.
ACAS, the government-funded workplace Advisory, Conciliation and Arbitration Service, has published some helpful advice on how to navigate these uncharted waters.
ACAS recommends that employers promote vaccination, and stresses a collaborative approach, talking through any issues with employees or workplace representatives.
Employers can facilitate discussions and potentially increase uptake of testing or vaccination by clarifying issues around: time off for vaccination appointments; discounting absences in records if due to vaccine side effects; rate of pay for people off with side effects, etc.
As always, it is better to start with good and clear lines of communication between employees and employers in order to avoid disputes and disciplinary action. However, if you find yourself in a potential position of conflict regarding coronavirus testing or vaccination, whether you are an employee or employer, speak to our Employment Law Specialist, Ivona Supernat on Ivona@ardenslaw.com or call 020 7100 7098.
Nothing in this article should be taken as a substitute for professional legal advice. Consult an employment law specialist before making any decisions on matters of Covid in the workplace.