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COVID Vaccination and Testing – can you make employees do it?
With the COVID vaccination programme underway and the government encouraging those who are symptom free to get tested every 2 weeks, employers are considering how far they can go in requiring employees to get vaccinated and tested.
Can employees be forced to be tested?
Clearly you can’t physically force anyone to submit to a COVID test. You can certainly ask and encourage employees to be voluntarily tested. Direct employees to relevant local government information on symptom free testing and only ask to be notified of a positive test result (and arguably even then only if the 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, involving a nose and back of the throat swab. It can be a legitimate concern for employees that being forced by their employer to regularly undergo such testing is an invasion of privacy.
Acas has issued guidance which states that employer 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 – who it should apply to and in what circumstances
- 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
If an employer pays for testing is that a taxable benefit?
The government updated tax regulations in November 2020 to ensure that where employers do provide (or pay for) testing, this will not be classed as a taxable benefit. Providing free testing is therefore exempt from income tax.
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. Whilst such objections aren’t new, there was a surge in the opposition to vaccines in general, specifically against the MMR (measles, mumps, and rubella) vaccine. This led to multiple measles outbreaks in countries where the measles virus was previously considered eliminated. Despite this, the movement is experiencing a resurgence, undoubtedly fuelled by social media and media outlets and by the speed at which the COVID vaccines have become available. On the face of it, being an anti-vaxxer is not a protected characteristic. Might an individual attempt to argue that being an anti-vaxxer should be a protected belief under the Equality Act (in the same way veganism has)? Almost certainly, but it’s unlikely a Tribunal would agree.
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 testing 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.
Final thoughts
Ultimately, you can implement any mandatory requirement you like, and dismiss any employee who refuses to comply. It all comes down to what risk your business is willing to take. Not only is there the time and expense of dealing with tribunal claims, but the publicity that is likely to be attracted is something most employers will want to avoid. Who wants to be the Tribunal test case (no pun intended)?
We have all been subject to strict government lockdown rules, and if we do go anywhere - requirements to wear face coverings and constant diligence in washing/sanitising hands. We can’t do what we want, when we want or see most of our friends and family. We’ve cancelled everything from weddings to gym sessions, decorated the entire house, completed Netflix and we’re half way through YouTube. Both little and large pleasures we took for granted have been denied us, and we still don’t really know when things will get back to “normal”.
We know it’s for everyone’s safety, but that doesn’t stop the feelings of frustration that most of us have felt, at least from time to time.
Being instructed by your employer that it insists you submit to invasive procedures or risk losing your job 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 will probably find that those who say they don’t want the vaccine are in the tiny minority, and having one to one conversations with those 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.
