With the vaccine rollout well and truly underway and rapid flow tests becoming increasingly more available the return to the workplace is looking more possible.
As about one in three people with coronavirus do not have symptoms but can still infect others, getting tested regularly is the only way to know if a person has the virus. If people test positive and self-isolate, it will help stop the virus spreading.
In Wales lateral flow tests are free for workers that are unable to work from home.
The lateral flow tests – which can provide results in around 30 minutes – can be done at home and people can pick up a number to ensure they can test regularly.
The vaccine rollout is in full flow, with many already having had their first jab.
But can an employer insist on their employees being vaccinated or taking a test? Can they take action against a staff member who refuses to regularly take a test before coming to the workplace or say they will not be vaccinated.
Here David Sheppard, an employment lawyer from Capital Law, outlines the legal perspective:
The law
Currently there are no statutory provisions which would allow any Ƶ Government to compel individuals to become vaccinated.
In fact, the Public Health (Control of Disease) Act 1984 actually provides for the opposite. While it legislates to prevent, control and mitigate the spread of contamination or infections, it specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.
If any government of the Ƶ were to legislate the right to insist on compulsory vaccination generally, it could potentially give rise to numerous objections on the grounds of individual liberty and human rights.
Article 8 of the European Convention on Human Rights protects people from being interfered with physically or psychologically, which includes mandatory vaccinations.
Can employers force you to vaccinate?
In terms of physically forcing an employee to have a vaccine then in short, no. Any non-emergency/routine medical procedure which is conducted without the patient’s consent would undoubtedly amount to a criminal offence. However, indirect pressure to take the vaccine can take different forms.
Employers may try to implement a so-called “no jab no job” policy, making vaccination a condition of recruitment or for undertaking specific roles or accessing specific places of work. Or they may be tempted to issue disciplinary action if an employee repeatedly refuses to be vaccinated and as such preclude themselves from being able to perform their role or attend work.
As well as posing human rights issues, such policy/behaviour could amount to indirect discrimination against groups of persons with certain protected characteristics under the Equality Act 2010. For example, if an employee’s refusal to be vaccinated and resulting detriment at work is due to their disability, pregnancy, or due to a protected religious or philosophical belief. A “no jab no job” policy could also disproportionately preclude younger workers and indirectly discriminate against them on the grounds of age, if they have yet to be offered the vaccine.
Ultimately, whether such a policy is lawful depends on whether it is objectively justified. Employers need to weigh up the risk posed by Covid-19 transmission in that workplace to workers and service users, with existing measures and PPE against the effectiveness of the vaccines in reducing that risk. That way, they can assess if less invasive measures would be sufficient, and consider exemptions for certain groups.
To increase vaccine uptake, employers could also educate and inform their workforce of the benefits of vaccination, before making it a mandatory requirement for any specific roles and helping to ease the process perhaps with time off or recognition of post-jab side effects.
What about mandatory testing?
Again, it depends on whether it is necessary and proportionate. Before introducing such a policy, employers should therefore consider how efficient it will be in making their specific work environment safer, and whether any alternative measure (like working from home or social distancing) would be better suited.
Generally, requiring an employee who displays symptoms to take a test is more likely to be considered a reasonable request, than asking it to an employee who does not.
Where testing is objectively justified, employers may seek to make it a contractual obligation – although individual consent is still required from each employee before a swab is taken. If the employee refuses, they can’t be forced as such, but their employer could potentially take disciplinary action.
Employers who test their employees must also make sure that they treat the results as sensitive data in accordance with the GDPR. Maintaining good communication with staff, and being transparent about how the data will be used, remains the best way to encourage voluntary testing.
Potential new Care Home Worker law
On 14 April 2021, the Ƶ Government confirmed that it is consulting on the possibility of introducing legislation making vaccination a compulsory requirement for staff in care homes with older adult residents in England.
It could indeed be argued that a policy requiring healthcare workers to have a vaccination is reasonable and proportionate due to the high-risk nature of their work, and that failure to vaccinate could create a serious and immediate health and safety risk to others. However, the issue of whether the vaccine significantly reduces transmission, or simply suppresses symptoms in a carrier, has yet to be scientifically established.
So, for all the competing interests and legal issues highlighted above, the introduction of such legislation will be massively controversial. The Ƶ Government would need to demonstrate that it complies with human rights and equalities principles, and that it is proportionate – weighing up the rights of the individual against the collective benefits of ensuring care home workers are vaccinated, given the extreme vulnerabilities of older residents.
Earlier this month, the European Court of Human Rights ruled that the Czech Republic’s compulsory vaccination policy (which requires parents to vaccinate their children against a number of childhood diseases) was justified. Crucially, it found that the vaccines not only protect the individuals being jabbed, but also those who cannot be jabbed for health reasons and are therefore reliant on wider herd immunity to give them protection. This may well have significantly increased the likelihood of a Care Home Worker law being introduced in the Ƶ.
