Can you make employees have the COVID Vaccination or undertake testing?
Our employment experts have been getting plenty of enquiries from employers around COVID-19 testing and vaccination and what they can require from their employees.
Can employees be forced to be tested?
You can’t force anyone to have a COVID-19 test, of course you can ask and encourage your employees to be voluntarily tested. You can direct employees to local government information on symptom free testing. You may ask to be notified of a positive test result but arguably only if your employee is not already working from home.
But what many employers want to know is, can they make testing mandatory and discipline or even dismiss employees who refuse to comply?
The answer, unsurprisingly, isn’t simple.
Testing can be an uncomfortable process and a legitimate concern for employees and feeling forced by their employer to regularly undergo such testing is an invasion of privacy.
Acas guidance states that employers cannot force employees to be tested, but, depending on the circumstances, an employee could potentially be disciplined for refusing to do so.
This is likely to only be fair in certain circumstances, and employers who don’t want to face claims should tread carefully.
Employers who want to consider introducing a mandatory testing policy, and disciplining employees who do not comply, should:
- Carefully consider why testing is necessary
- Consult and agree a testing policy with employees (or recognised Trade Union)
- Put the agreement in writing
- If an employee refuses to be tested, consider their reasons, whether there is scope for flexibility and try to resolve the issue before moving to disciplinary action
- Comply with data protection rules around handling sensitive personal data
Can employees be forced to vaccinate?
Requiring employees to be vaccinated is even more of a thorny issue than testing. Requiring individuals to undergo an invasive procedure is something that even the government isn’t willing to mandate.
There can be many reasons why someone may refuse to be vaccinated, including:
- Concerns/anxiety – around the safety of the vaccine, largely prompted by its swift development and release
- Religious objections – although the majority of major religious organisations have approved the vaccine as suitable for its followers to have, an individual’s faith/belief must be factored in
- Health reasons – someone may be allergic, pregnant or have some other health related reason for not being able to safely have the vaccine
- Anti-vaxxers – the anti-vaccination movement largely arose from parents in Western countries refusing to vaccinate their children due to various reasons and perceived fears.
Acas guidance on vaccination is similar to testing – employers can’t force employees to be vaccinated and if they want to introduce such a policy, the same sort of steps as with testing should be followed.
With vaccination however, the risks around discipline and dismissal are likely to be higher so employers should approach such situations with extreme caution. Not only could you face unfair dismissal claims for those with at least 2 years’ service but, regardless of longevity, employees could bring discrimination claims depending on their circumstances.
Forcing employees to submit to testing and vaccinations may be an invasion on peoples’ sense of freedom and privacy that goes a step too far. The majority of individuals will welcome the jab when it gets to their turn, is it even necessary to introduce a policy?
Communication is key
Start a genuine, two-way dialogue with staff, perhaps even conduct an anonymous opinion survey to find out what your workforce truly thinks about testing and vaccination.
You’ll probably find those who don’t want the vaccine are in the tiny minority, and having one to one conversations to understand their reasons is likely to be much more successful in fostering good employee relations, than going straight in with proposals for mandatory requirements across the board.
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