By Rosemary Lundy, Partner, Employment Law, Arthur Cox
A recently leaked proposal by the UK Health Secretary Matt Hancock to make vaccinations against COVID-19 mandatory for care workers in England garnered significant media interest and no shortage of controversy around the rights and wrongs of the idea.
It also sparked a debate around the obligations and responsibilities of employers as they seek to foster a safe working environment for staff or, for those in sectors where employees are working from home, planning for their return when restrictions lift.
With that in mind, employment lawyers are increasingly being asked whether employers can – or should – make vaccinations or measures such as wearing masks compulsory in the workplace.
It goes without saying that the coronavirus and the associated restrictions required to stem its spread have deeply impacted the way we interact with each other and changed – perhaps forever – the shape of our workplaces.
Interim measures such as providing sanitisation stations or staggered lunch breaks to allow for social distancing have been successful across a wide range of sectors and industries.
But as we look towards the much hoped for easing of the lockdown, employers are asking how they can continue to provide a safe place for staff during what we are now all used to calling the ‘new normal’.
The Health and Safety at Work (Northern Ireland) Order 1978 places a duty on all employers to provide a safe working environment, leading many to question whether they need to mandate vaccinations or simply encourage staff to seek the jab.
The good news is that when it comes to vaccinations, the success of the programme in Northern Ireland and the rest of the UK means that this consideration may be taken out of employers’ hands.
As the scheme expands to cover people in their 40s, we are well on track to have the entire adult population offered at least one dose by the summer months.
Any employer considering the implementation of a mandatory vaccination requirement would need to consider, the context in which they operate, other measures that could be put in place and whether the vaccine is necessary to protect the individual themselves, their colleagues, customers or clients.
Additionally, they must also be cognisant of laws around discrimination and whether these supersede moves to make vaccinations compulsory.
In terms of wearing a mask, current legislation requires employees of “relevant businesses” such as shops, banks, restaurants and others to do so.
Other key considerations for businesses surround how to react to an employee that does not adhere to COVID-19 guidance or the organisation’s coronavirus policy, and how obligations may differ for new and existing staff.
‘Whatever measures employers choose to implement should be based on evidence following a full risk assessment, supported by expert advice to ensure their workplaces are COVID secure without falling foul of the law.