Can employers force employees to attend the workplace if they have or have not had the vaccine?

Posted in : Seamus Says - Employment Law Discussion on 5 February 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Coronavirus Vaccine

Can employers force employees to attend the workplace if they have or have not had the vaccine?

We have one employee who is stating that he will not return to the workplace despite safety measures being in place. Can we take action now? If not, can we insist that vaccinated employees return to the workplace? Working from home isn't efficient in our opinion. So that's a kind of mixture. I know we were chatting before we went live. You've a client who's an employee, who's refusing to go in, even though safety measures are in place. This is a situation about vaccines. So what about vaccines? Do employers have any control at all over employees who have or indeed who have not been vaccinated?

Seamus: Well, I think that there's an element of realism that we have to think about with vaccine. I think that from what my understanding is we have something like over 260,000 vaccines now delivered in Northern Ireland, brilliant and brilliant figures with a population of about 1.8. And we know that the government are working through their various priority groupings. There isn't a situation at the minute where employers can have a vaccination, an internal vaccination program, and very much the position remains from the government that there's a clear message there that we stay at home, and we work from home where possible. And so, you know, at this moment in time, where you are able to work from home, you should be staying at home.

It certainly is a valid question, and whereby, if somebody has got and received their vaccine, are they in a position to return for work? And I did see this morning there on, I think it was, the Sky News this morning, that they were doing an interview with some CEV people in England. And I'm not sure if I picked it up right or not, but I think the position was that the government were saying that there was still a recommendation to stay at home until you've had your second jab. And so, certainly, it's not a complete resolution as regards vaccine, but some further good information this week where they said that some of the vaccines will limit the high contagious that can be if you've had your vaccine so you can limit it.

But there still is that realistic side that even if you've had your vaccine, you can still spread it around, so certainly there still is caution to be taken. As it stands at the minute, we're following the government message. And I think it'll be quite some time before we see vaccinations issued to the general workforce. I think we're looking into certainly the summer before that process starts for the general sort of public and outside of those priority groups. So we're working through the phased vaccine program as it is at the minute, and employers have a duty of care to all of their staff, and especially with regard to health and safety. So it's essential to treat all employees fairly and reasonably.

So I don't think that there's an automatic position where an employer can say, "Oh, you've had the vaccine, straight back into work you come." It's just not as straightforward as that. I think, asking vaccinated staff to return to work, it could be construed as a reasonable request, I think, that where vaccinations have been given. And if we think about the health service and things like that as well, it could certainly be a reasonable request. But it will depend on factors and I think it will, you know, the industry you work in will be important and the size of your workforce and again how well you can still manage the various requirements in relation to COVID-19 precautions within your workplace.

It always comes down for me, it's best for employers to consult with their employees in an open manner and to try and find flexible working arrangements for employees who have health concerns and whether that's maybe working at home for three days and coming into the office for a few days but it should always be best placed if you can get agreement and consult in relation to that. Forcing employees to return to work whilst the pandemic is ongoing, I think could potentially give rise to disability discrimination issues. And so employers do need to be careful specifically around those CEV employees or employees that are shielding.

And so I would caution against taking an action right now. I think part of the question there was, can we take action now? And I think it's a matter of, you know, taking a balanced approach and let's try and work through this vaccination process. I certainly do think that, you know, the scales will balance out at some point where can be a reasonable request for people to return to work.

Scott: Okay. And I suppose our poll that we had earlier there where only 20% of the people listening anyway who ticked the box, have been chatting to their staff about those issues. It's one of those areas where it's difficult for an employer because if somebody's had the vaccine or not, it's personal data, and they don't have to share it, you know, but it's one of those good news stories. I'm sure that the people and Legal Island, we're fairly open about stuff like that. I think when I get my vaccine, I'm not too far away. I'll be on the list before you, Seamus. I'll let everybody know. Don't you worry, I'll let everybody know but it's one of those things that's worth discussing in case there are people that are concerned in some way. But you're right at the moment, you know, the figures seem to suggest that you don't even have to vaccinate everybody to have that herd immunity. In which case, why would you have to force somebody to have a vaccine if they want to have a vaccine seems to be the way it's going.


This article is correct at 05/02/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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