The roll-out of vaccines doesn’t make the return to the workplace any easier – it actually creates more headaches for employers.
If there’s been one standout success in the suppression of COVID-19 in the UK, it’s been the unparalleled roll-out of vaccines, with more than 33 million people so far receiving at least one of their two jabs. But with all predominantly post-retirement-age citizens now immunised, the next part of the programme enters a much trickier phase: making working-age groups safe. It’s by no means as simple as it sounds for employers who want to see staff returning to their offices.
‘Most employers will be aware of their duty of care to staff [primarily under the Management of Health and Safety at Work Regulations 1999 and the Health and Safety Act 1974],’ says Chris Walker, head of health and safety at Napthens Solicitors. ‘But the reality is that we’re seeing a significant degree of confusion.’
He adds: ‘A whole host of new questions emerge, including whether control measures already put in place can now be removed, what needs to be done to accommodate staff who refuse to be vaccinated, the extent to which unvaccinated staff pose a threat to vaccinated staff, and of course how to judge what level of risk assessment change is necessary. And this doesn’t include issues around whether rapid testing of staff is needed, or how reliable it is.’
‘Part of the problem,’ observes Karen Michell, IOSH researcher, ‘is that COVID-19 is not an occupational problem in the strictest sense of the word. It doesn’t originate from the workplace.’
She adds: ‘What makes vaccination an issue is that there is no clear direction about what is needed going forward. An added complication is that firms will have to work out the point at which vaccination is deemed to have reached a point where COVID-19 ceases to become a workplace hazard for any pre-existing measures to need to continue. It all adds up to a lot of complexity. Employers probably still need to go over and above what they need to, to make employees feel safe.
‘For so long, staff have been told to stay away. Now they’re being encouraged to return – so there’ll be a perception versus reality issue at play too.’
One thing seems clear – employers can’t force all returning staff to be vaccinated (see No jab, no job? below). But there are still important issues to consider.
Employers’ duty: No jab, no job?
Under the Health and Safety at Work Act 1974 and the Control of Substances Hazardous to Health Regulations 2002, UK employers have a responsibility to protect the health of their employees and others who may be affected by their undertaking. This includes people who may reasonably be exposed to contact with biological pathogens as part of their daily work. The Management of Health and Safety at Work Regulations 1999 states it is the duty of employers to assess the risk to staff, and to put in place appropriate controls to mitigate that risk.
But despite all this, and despite media stories to the contrary, the consensus among lawyers is that employers cannot force their staff to take a COVID-19 jab.
Debbie Sadler, senior associate at Blaser Mills Law, says: ‘There is a belief that ensuring staff are not placed at risk by working alongside colleagues who have not received the vaccine is in accordance with best practice.’ But she adds: ‘Enforced vaccination could still be challenged on legal grounds – from it being contrary to their human rights, or whether employers have enough compliance with the provisions of the Data Protection Act 2018 and the General Data Protection Regulations.
‘Equally, if an employee had an adverse reaction to the vaccination, they could bring a personal injury claim against their employer for any lasting illness or injury.’
According to Debbie, few employment contracts have included provisions for a pandemic, so any introduction of compulsory testing would require changes to terms and conditions. ‘Employers can certainly encourage staff to get vaccinated by explaining what they consider the benefits of vaccination to be. They could even incentivise them by allowing paid time-off to attend appointments. But care should be taken not to unduly pressurise or mislead staff. They must be allowed to make their own informed decision.’
‘Firms are most likely going to have to deal with partial vaccination,’ says Karen. ‘Staff choosing not to be vaccinated will likely insist on two-metre distancing, or retaining density ratios. Communal areas might still need rules in place to prevent mixing.’
But as more and more people are vaccinated, there will most likely be a tipping point between what is and isn’t acceptable to employers to accommodate. ‘Currently it would be unreasonable not to take someone’s concerns seriously about being in an office where some have been vaccinated, and others have not,’ says Chris. ‘But as restrictions are eased, and social distancing is relaxed, companies will rightly be asking if there is any substantial risk, and what their responsibilities are.’
He adds: ‘People catch colds from each other at work, but we’ve not had distancing to prevent that. At some point, an employee shouldn’t be able to demand special provisions, and nor should employers be forced to make allowances for them. But the issue is that no one knows when this will be.’
Linked to ensuring workplaces are safe is whether employers should be offering lateral flow tests alongside letting vaccinated staff return. Not only are there issues around accuracy (although the government says there is a false positive in only one per 1000 cases), but collecting and disposing test materials throw up disposal and hazardous waste problems.
What makes vaccination an issue is that there is no clear direction about what is needed going forward
‘In addition,’ argues Charles Spencer, principal health and safety consultant at employment law firm Ellis Whittam, ‘there are still unknowns even about how vaccination cuts rates of transmission of COVID-19. The
data is changing all the time, but it’s hard for employers to stay on top of this, or indeed decide which dataset is regarded as the “universal truth”.’
Such is the confusion, Ellis Whittam has released its own guidance to clients (which it too is following), including consultation and data protection issues, and whether requesting a test breaches employees’ human rights. It suggests Article 8 of the European Convention on Human Rights can overrule this if it’s ‘in the interests of national security, public safety or the economic wellbeing of the country’.
Charles says: ‘Firms are in a reactive position – relying on old data – when what they really seek is how to be proactive in handling accommodations going forward.’
Case study: Setting workers’ minds at ease
Because one in three people with COVID-19 show no symptoms, energy company Octopus introduced testing to staff in December 2020 in all four of its locations: London, Leicester, Brighton and Warwick. An Octopus spokesperson says: ‘Some members of staff are unable to work from home, and so we now test staff twice a week.’ Because offices are only at 10% to 20% capacity, around 200 staff are tested.
‘Tests take just a few minutes per person. Staff provide a throat and nose swab sample with kits provided by NHS Test and Trace. While this part is fairly easy, it does require trained testing personnel to finish the process and assess the test. Our testing leads are there the entire time, guiding the staff members through the process.
‘Staff receive results anonymously via text message and are emailed within an hour after testing. All testing team members wear full PPE and they disinfect the testing booth after each test. To dispose of all potentially contagious hazardous materials and equipment, we use medical waste bins provided by NHS Test and Trace.’
Staff members testing positive are required to digitally notify their manager and anyone who they have come into close contact with, and return home immediately to self-isolate.
The spokesperson concludes: ‘While we’re unable to disclose the positive or negative test results, the testing pilot has done a lot to ease worries and give colleagues some peace of mind.’
New rules, old problems
‘What’s clear to me,’ says Karen, ‘is that a thorough risk assessment is just one aspect. Just, if not more, important is effective communication. Staff need to know why an assessment is judged to create this or that change in the workplace. Risk assessment outcomes need to be more visible. That’s what makes them feel safe.’
It’s certain that if employers did request workers to return without a proper risk assessment, most could be on dangerous ground. According to research by law firm Schofield Sweeney in March this year, only 39% of employers had amended or introduced new health and safety policies specifically to deal with returning employees. Some 55% didn’t even know if they had staff that were unable to have a vaccine on medical grounds. Partner Craig Burman says: ‘Employers need processes to identify this, and they will have to keep clinically vulnerable staff safe.’
He adds: ‘Unvaccinated staff who remain at a high risk from the virus will need all reasonably practicable measures to keep them safe. This will also extend to staff who live with clinically vulnerable family members.’
For some, this may leave their current assessment frameworks wanting. Chris says: ‘COVID-19 has revealed that in calling out a need to do proper assessments going forward, it’s actually revealed holes in previous health and safety risk assessment procedures.’
If employers think they can ride things out until everyone is vaccinated, that’ll be a long time to wait
Those running lateral flow tests for employees outside care homes and clinical settings include Royal Mail, Primula, Tate & Lyle and Octopus Energy (see Case study, above). The government is keen to promote this; it recently extended free tests to firms with 50 or more staff from those with 250.
‘Antigen tests detect the nucleocapsid protein bound to the RNA inside the virus,’ says Stewart Hutton, business lead for diagnostics at Siemens Healthineers GB&I, ‘and results are available in 15 minutes’.
But Siemens and others insist tests should only be carried out by healthcare professionals – which adds another layer of planning to workflows.
‘Specimen collection under the supervision of a healthcare professional is possible,’ Stewart adds. ‘Certainly, by empowering individuals to collect their own specimens, testing sites can reduce the risk of COVID-19 exposure to others.’ But, he admits, it is not wholly recommended.
Control the controllables
But at least one thing does seem clear. For the time being at least, talk of employers actually doing vaccinations on-site doesn’t appear to be in the offing. However, employers still need to stay up to date.
‘At a time when scientific advice changes constantly, employers need to control the controllables,’ says Chris. ‘Even if everyone has been vaccinated, it would still be unwise to unwind other protective measures until we know for certain that vaccination cuts transmission.’
Charles adds: ‘Firms would also be wise to require employees who don’t want to be vaccinated to sign forms saying they understand the risks of not doing so.’
It’s clear that while the way forward is still not clear, the need to have a robust risk assessment process in place is palpable. ‘If employers think they can ride things out until everyone is vaccinated, that’ll be a long time to wait,’ says Karen.
Chris concludes: ‘When staff lose their fears and decide to come back depends on the extent to which employers can make staff feel safe. One thing’s for certain: at some point it will be unreasonable for employers to be expected to make accommodations when risks are so small. We just haven’t got there yet.’