OpinionDec 6 2021

Tread lightly over workplace vaccination rules

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Tread lightly over workplace vaccination rules
Pexels, Thirdman
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Various studies suggest that the vaccine is between 65 per cent and 95 per cent effective in preventing symptomatic Covid, yet vaccinations remain something of a divisive topic with a sizeable number of people still reluctant to get the jab. 

In families and friendships groups, on social media and at work, there is often debate between those who have freely opted to get the Covid jab and those that would prefer not to.

And with the new Omicron variant making headway in the UK, the debate is becoming even more heated now that some Covid measures are being reinstated.

With face masks now compulsory in certain areas again, self-isolation mandatory for everyone who has been in close contact with the new variant – regardless of vaccination status – and the return of the red list, people are starting to question whether there should be different rules for those who are vaccinated and those who aren’t, and if distancing themselves from those who are unvaccinated will help avoid any risk of catching Covid.

We have seen segregated areas start to crop up around the world, from Italy banning unvaccinated people from travelling by plane or train, to New Zealand’s new traffic light system meaning that people who are vaccinated will have a higher level of freedom from those who are not when cases are high. 

These may be considered draconian measures, but could we see them coming into the workplace?

We have started to get calls from business owners looking for advice as to whether they can have separate areas for vaccinated and unvaccinated employees.

From a safety perspective, there could be good reason to consider this. In theory, there would be far less risk of transmission within the team, leading to less periods of self-isolation and absences for HR to deal with.

In sectors where vaccination is mandatory, such as care homes and frontline healthcare staff, it will soon be a legal obligation that only employees who are fully vaccinated or have a certified medical exemption can be around patients.

Under the Health and Safety at Work Act 1974, employers have a duty to take all reasonably practical steps to ensure the health, safety, and welfare of their staff, but forcing employees to get the vaccine in sectors that are not directly associated with patient care could trigger human rights implications. And treating employees differently based on their vaccination status could leave you at risk of a discrimination claim.

So perhaps not surprisingly, there’s no clear cut answer here.

Claims and company culture

While some may have legitimate concerns about spending their working days in close proximity to someone who chooses to be unvaccinated, enforced separation based on vaccination status will inevitably have its issues.

Consider teams that work closely together and have regular meetings and collaboration sessions. How would this work if you separated one or two people from the rest of the team? Creating a divisive work environment directly counteracts the movement towards inclusivity that most companies are – and should be – striving for.

Collaboration and innovation would surely suffer if a barrier is built between colleagues, with inevitable and maybe irreversible damage to workplace relations and company culture.

It is important to note that not everyone who decides against vaccination bases their judgment on something they have read on social media or unfounded conspiracy theories.

Many people do have valid grounds for refusing the vaccine; they could be medically exempt, pregnant or could refuse the jab due to religious or ethical reasons. Uncertainty about the efficacy and safety of the jab can also play a part, as can a phobia of needles or other psychological issues.

Aside from the moral implications, it is important to understand that employers who choose to go down the route of implementing separate working areas for vaccinated and unvaccinated employees are leaving themselves open to discrimination claims.

This is particularly true when it comes to employees who have refused the vaccine on religious or medical grounds, or due to pregnancy, all of which are protected characteristics under the Equality Act 2010.

Additionally, some employees who are medically exempt, but have chosen not to disclose underlying health conditions to colleagues, may also feel like their separation from the wider workforces highlights their medical issues, thereby breaching the implied term of trust and confidence in the employment relationship.

Employers should also keep in mind that any information relating to an employee’s health is protected information for which they could risk GDPR-related claims for sharing without express consent.

So, what would I advise?

Speaking to your staff and asking them their reasons for not getting vaccinated is a good place to start.

If they face barriers in getting the jab, such as having no way to get to a clinic or finding it difficult to get the time to do so, you could allow them to go during work time and even provide transport.

The safest route for employers to take – both morally and legally – is to continue to communicate the importance of maintaining good practices in the workplace to avoid transmission.

This includes mask wearing in communal areas, using hand sanitiser regularly, instigating deep cleans of the workplace, implementing social distancing and encouraging regular testing. Any employees who feel unwell should work from home and make sure that employees who need to self-isolate are able to do so.

Peter Done is managing director of law firm Peninsula