What to do about unvaccinated workers?

We wrote previously about the issue of unvaccinated workers, how potential outbreaks of Covid in the workplace might be prevented, and how it may well be tempting to have a blanket policy in place that employees must be vaccinated and whether this is lawful?

Of interest now to employers, due to the recent Covid-19 Omicron variant, might be what to do about unvaccinated workers who are still required by law for the full period of 10 days if contacted through the government’s test and trace system (which, in England, the law currently distinguishes from those that are vaccinated, who do not have the same obligation). 

If an unvaccinated worker is obliged to legally self-isolate it is worth considering on what terms that self-isolation will occur and ensure that all policies have been updated and all staff aware. It should be noted that some employers in the service and retail industries, most notably recently Ikea, have opted to update policies to suggest that unvaccinated workers (those who are unvaccinated by choice rather than medical exemption) will not qualify for full pay during any self-isolation, only statutory sick pay. Whilst it could be tempting to make this a blanket policy, it should be noted that this could give rise to a discrimation claim as an individual may be able to claim that this puts them at a particular disadvantage when compared with others who do not share that protected characteristic (contrary to section 19 of the Equality Act 2010 - indirect discrimination). 

It is also worth considering at what point ‘fully vaccinated’ extends to only include those who have had the booster and ensuring that policies are up to date.

Lastly, employers in the health care sector should note that from April 2022, vaccinations become mandatory for healthcare professionals with face-to-face contact with patients and service users (unless exempt). This extends the mandatory Covid-19 vaccination requirement for care home workers (unless exempt) that came into effect on 11 November 2021 - although the outcome of a judicial review into the lawfulness of that requirement is still awaited.

Posted on 01/12/2022 by Ortolan

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