Following the news that public-facing workers including teachers, police officers and retail staff could soon be offered Covid-19 vaccinations, Sean Dempsey and Sophie Jamieson look at whether employees are entitled to time off work to get their jabs.
As Covid-19 vaccinations are rolled out, employers can look forward to the prospect of staff returning to the workplace. But what should they do when employees ask for time off to get the vaccine – must they accommodate whatever appointment their staff are given?
The government has not yet released any guidance on vaccination for employers, but existing law gives some pointers on how to approach the issue.
Are employees entitled to time off during working hours to get the vaccine?
Although there is no general right in law for an employee to have time off for medical appointments, most employers are likely to want to support the national push for vaccination and to allow employees to attend their appointments.
Employers should also check their contracts and policies to see what rights employees have around attending medical appointments.
At the moment, people of working age who are eligible for the vaccine are likely to fall into one of two groups: frontline health and social care workers, or clinically extremely vulnerable individuals. Clearly, for health and social care workers, being vaccinated will be a priority to protect both themselves and those for whom they care.
Employees who are clinically extremely vulnerable may also be classed as disabled under the Equality Act 2010. This could trigger the obligation to make “reasonable adjustments” to accommodate their needs. Allowing time off for the vaccination could potentially amount to such a “reasonable adjustment”.
Vaccinating shielding employees whose jobs cannot be done from home is also an important step to getting them back to work. However, vaccination does not guarantee protection against Covid-19: just because a clinically vulnerable member of staff has had their jab, employers should not demand their immediate return to work without a thorough risk assessment.
Clearly, encouraging and enabling vaccination is a key step to minimising the risk of Covid-19 transmission in the workplace.”
Even for healthy employees, employers may still have a responsibility to promote vaccination. Under health and safety law, employers have a legal obligation to provide a safe place of work, carry out risk assessments and implement measures to minimise the risks identified. Clearly, encouraging and enabling vaccination is a key step to minimising the risk of Covid-19 transmission in the workplace.
What’s more, employers could find themselves in breach of the term of mutual trust and confidence that is implied in employment contracts if they stand in the way of employees being vaccinated. This term creates a catch-all obligation on both employer and employee not to conduct themselves unreasonably. An employee may argue that given the seriousness of the pandemic, their employer preventing them from getting the vaccine would be sufficiently serious to constitute a breach of trust and confidence.
Can an employer ask an employee to change their appointment to a more convenient time?
Where possible, we would recommend employers allow employees to attend their vaccination at the time slot they have been allocated. Especially where employees are working from home, attending a local appointment is likely to cause minimal business interruption.
However, if an employer has a valid reason not to allow an employee to attend their designated slot (for example if they do shift work that cannot be covered by anyone else, or they work on a site away from home) then it may be possible to ask the employee to reschedule the appointment. If employees are offered a choice of appointment times, it would be fair for the employer to ask that employees choose a time that minimises disruption to the business.
If the vaccination appointment does take place during working hours, there is no legal requirement for employees to be paid for that time. Nonetheless, employers may choose to do so in order to incentivise employees to get the vaccine and thus protect the health and safety of others.
Any lost time for the business caused by employees attending their appointments is likely to be easier to swallow than the negative publicity that could follow from preventing attendance.”
What are the reputational risks of limiting employees’ ability to get the vaccine?
Inhibiting employees’ ability to get the vaccination could be a PR own-goal for employers. Any lost time for the business caused by employees attending their appointments is likely to be easier to swallow than the negative publicity that could follow from preventing attendance. Even asking employees to reschedule their appointments outside working hours may reflect badly on the employer, given the administrative burden on the NHS of having to rearrange appointments.
The Labour party is already calling on employers to give staff paid time off to attend their vaccination appointments and emphasising the role that business has to play in the national effort to defeat coronavirus. Those employers who choose not to support their employees in getting vaccinated risk finding themselves named and shamed in the local or national press, never mind any potential employment tribunal claims.
Given the damage the coronavirus crisis has done to a lot of businesses, the prospect of mass vaccination is encouraging news and brings hope of getting the economy back on a steady footing. Whether it be for legal, reputational, financial or moral reasons, we expect most employers to get behind the vaccination effort.
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