Coronavirus: Your Rights At Work
2022 at 15:00
Since the beginning of the pandemic, weve been fighting to protect UNISON members who are at the forefront of the COVID-19 response.
We are working proactively with the UK governments, employers, and other bodies to keep you safe at work.
The UK government and other devolved parliaments have outlined plans for ongoing changes to restrictions. Different approaches are being taken by each country.
The information below reflects the legislation and guidance as currently applied.
Details of the latest advice from all 4 nations can be found here:
Can My Employer Make Me Get A Covid
An employer cannot make one of their employees receive a Covid-19 vaccine if they do not wish to. However, as a result of the Governments vaccine mandates, many businesses may be contemplating introducing measures via clauses in contracts of employment or amending existing contracts that require their workforce to be fully vaccinated. An employers reasons for introducing such measures could relate to protecting vulnerable staff members, visitors, or customers, or in an attempt to limit absences due to workers catching Covid-19 or being required to self-isolate.
Should an employer introduce measures that require workers to be fully vaccinated and an employee still refuses, depending on the circumstances, it could result in the employee being redeployed to a different role or they could be dismissed. How an employer handles such situations is something they need to give much consideration to before introducing a vaccination policy.
If a business introduces a vaccine mandate for their workforce but an employee still refuses to be vaccinated based on the fact that they have a disability or is as a result of a religious or philosophical belief, and the worker is then redeployed or dismissed, it could potentially face a direct or indirect discrimination claim from their worker. For further information on this subject, .
Can An Employer Require An Employee To Be Vaccinated
Employers can only require their employees to be vaccinated where:
- a specific law requires an employee to be vaccinated
- the requirement is permitted by an enterprise agreement, other registered agreement or employment contract , or
- it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis .
One or more of these circumstances can apply when an employer is requiring an employee to be vaccinated. For example, an employer could rely on a state public health order that requires their employee to be vaccinated to give the employee a lawful and reasonable direction not to work unless they are vaccinated.
Employers should also consider how protections for employees under anti-discrimination laws may apply. Learn more at How does a requirement to be vaccinated interact with anti-discrimination laws?
An employer may in certain circumstances be required to direct employees to get vaccinated to comply with obligations under a work health and safety law. Information on work health and safety obligations is available from Safe Work Australia. Go to Commonwealth, state or territory workplace health and safety regulators to learn what work health and safety laws apply.
Employers should get their own legal advice if theyre considering making coronavirus vaccinations mandatory in their workplace.
Some employees may have questions or concerns about getting vaccinated. You can:
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What Is Hipaa Law Regarding Vaccine Passports
HIPAA law regarding vaccine passports is the same as any other proof of vaccination. Only HIPAA Covered Entities and their Business Associates are required to comply with HIPAA. Therefore, if an individual is asked for a vaccine passport by their health plan provider, the health plan provider is subject to HIPAA law. However, if an amusement park operator requests to see a vaccine passport, they are not a HIPAA Covered Entity or Business Associate and therefore not subject to HIPAA law.
Sharing Information On The Facts Around Vaccination
Download our employers communication toolkit and use and share the content and assets to help you have the conversation with your employees.
Post articles or blog posts in your companys communications about the importance of COVID-19 vaccination, as well as how and where to get the vaccine in your local area.
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How Employers Can Support Ongoing Vaccination Efforts
In December 2020, the Food and Drug Administration began granting emergency use authorization for three COVID-19 vaccines. After completing its standard process for reviewing the quality, safety, and effectiveness of medical products, the FDA approved the Pfizer-BioNTech vaccine on August 23, 2021.
As of August 31, more than 174 million people in the United States have been fully vaccinated, according to . This represents slightly over half of the US population, according to 2020 Census data.
The percentage of people vaccinated in a given area whether an individual state, a city, or other community can vary significantly. In addition, new variants and resulting outbreaks are creating confusion over vaccine mandates, potential boosters, and social interaction protocols.
Employers and businesses have an important role to play. Even as government and public health officials continue their efforts to vaccinate more people, businesses should be considering their options to support and enable the vaccination of their employees. As they do so, employers should carefully consider a variety of questions related to their risks, responsibilities, and rights as well as those of their employees and how they can address potential challenges that could arise as vaccination efforts proceed.
As employers make these plans, the following are a sampling of frequently asked questions for risk professionals and others to consider.
Key considerations for employers include:
Build Confidence In Covid
Vaccine confidence is the trust that employers, employees, their families, and healthcare providers have in:
- Recommended vaccines
- Providers who administer vaccines
- Processes and policies that lead to vaccine development, licensure or authorization, manufacturing, and recommendations for use
Build vaccine confidence by making confidence visible in your workplace. Follow these steps:
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Can I Ask My Employees If They’ve Been Vaccinated
- AuthorEmployment Team
As employees begin to return to the workplace, many employers may want to know who in their workforce has been vaccinated against Covid-19. Employers planning on asking employees for this information must ensure they have a clear and necessary reason and that they implement appropriate safeguards to protect this data. Our Employment Law team reviews this topic and explains the situations when employers may be able to request this information, how they process that and how long they store any details regarding this.
What Does This Mean For Employers
Employers will need to consider vaccination as part of their risk assessment and should be encouraging employees to get vaccinated.
Employers should be careful not to judge or stereotype employees. Just because an employee is part of a religious group does not automatically mean that they have refused to be vaccinated, so this should not be assumed. Equally, employers should not assume that the reason for someones refusal is what the employer perceives their religion to be.
The Irish government announced on 31 August that attendance at work for specific business requirements may commence on a phased and staggered attendance basis from 20 September. However, we still await an updated work safely protocol or any updated guidance on how the return to the workplace should be managed.
For now, the position is clear: employers should not be making vaccination a condition for the return to the office or asking employees for any information in respect of their vaccination status.
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If You Are In The High Risk Or Veryhigh Risk Category
For some workers, the risks are higher from COVID-19. There are two levelsof higher risk high risk and very high risk .
If you are in the very high risk or high-risk categories and cannot workfrom home and must be in the workplace, your employer must make sure that youare supported to maintain a physical distance of 2 metres from others at theworkplace.
If you are in the very high risk category, you mayhave to undertake a medical risk assessment with an Occupational Healthpractitioner or your GP before returning to the workplace. Your employer shouldsupport you to work from home where possible.
You can read more about at risk workers in the WorkSafely protocol .
Can An Employee Refuse To Be Vaccinated
Some employees may have questions or concerns about getting vaccinated. You can find information about COVID-19 vaccines from the Department of Health, including answers to common questions about the safety and effectiveness of the vaccines.
An employee might refuse a direction to be vaccinated even if they are required to under a specific law, agreement or contract, or after receiving a lawful and reasonable direction. In these situations, an employer should ask the employee to explain their reasons for refusing the vaccination. An employee may have a legitimate reason for not being vaccinated. For example, the employee could have an existing medical condition that means vaccination is not recommended for them. Employees should speak to their doctor if they have concerns about receiving a vaccination because of a medical condition.
If you have concerns about the safety of COVID-19 vaccines:
- call the National Coronavirus Hotline to get reliable information from the Australian Government.
If the employee gives a legitimate reason for not being vaccinated, the employee and their employer should consider whether there are any other options available instead of vaccination. This could include alternative work arrangements, such as asking the employee to perform different duties or to work from home. Find out more at Alternative work arrangements.
Resolving workplace issues
Get guidance on resolving workplace issues at:
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As An Employer Can I Require My Staff To Take The Covid
Vaccinations are not as legal requirement and therefore it would be very risky for any employer to make the COVID -19 vaccination a mandatory requirement in the workplace. In some industries, such as the social care sector, it could be argued that the requirement to take the vaccine is a reasonable instruction because failure to do so could put vulnerable residents at significant risk. In other industries such as corporate employers this requirement would be not a reasonable instruction as staff could work from home meaning that such an instruction would not be reasonable.
Any employer seeking to issue any such instruction, is reminded that they must not force anyone to take the vaccination but they should engage with their workers and include any associated trade unions. Each employer will have a different set of circumstances and as such, what might constitute a reasonable instruction will differ so it will be worth seeking specific legal advice on this.
Employment Terms And Conditions
There may be a small number of working environments where employers are concerned that unless all staff are vaccinated they may not be able to ensure the safety of colleagues and service users. Even in such cases it is preferable for employers to try to persuade employees of the benefits of vaccination through open discussion and/ or put in place other safety measures rather than mandating vaccination.
Introducing a policy that employees must be vaccinated may involve making changes to the terms and conditions of employment. Making such changes requires consultation with Trade Unions and/or the workforce with a view to reaching agreement. During consultation issues of the potential discriminatory effect are likely to be raised.
It is important that non-vaccinated staff are not treated less favourably than vaccinated staff. If some staff are not vaccinated and it is not possible to put in place sufficient alternative safety measures employers should consider reasonable adjustments for those staff. For example this could mean offering regular testing for unvaccinated staff or offering an alternative role at the same grade or level where there is less risk of transmitting the virus. Any such measures should be regularly reviewed. As more of the population is vaccinated we hope the prevalence of the virus will decrease and therefore the risk of transmission should also decrease within the working environment.
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Disability Accommodations And Vaccines
Under the Americans with Disabilities Act , employers must provide reasonable accommodations to qualified employees with a disability, unless the employer can demonstrate the accommodation would create an undue hardship. Reasonable accommodation may include appropriate adjustment or modifications of employer policies, including requirements imposed by a mandatory vaccination policy.
As with any request for an accommodation because of a disability, the employer should engage with the unvaccinated employee to identify potential workplace accommodations. The ADA creates an exception to employers obligations in the event of an undue hardship, which may include hardships associated with accommodation costs, finances of the organization, and impact of the accommodation on company operations, among other factors.
While we are just starting to see challenges to COVID-19 vaccine mandates, there have been rulings on other vaccine mandates in healthcare and government. Still, because the challenges of COVID-19 are so new, we are sure to see new cases and new precedents, and Practical Law continues to follow the issue closely.
I Am Looking For Work Will I Have To Tell Prospective Employers Whether Or Not I Have Been Vaccinated
There is a general prohibition on employers asking prospective employees health-related questions, which in this case would include their vaccination records. Although, there are limited exceptions to this that could apply to sectors and job roles where there is a particular health and safety reason, meaning the employer needs to know whether youve been vaccinated or not.
This is lawful as long as the employer does not discriminate against any disabled candidates who are unable to have the vaccine as a result of their disability.
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Use Of Employee Vaccination Information
You must inform your employees of the specific reasons why you are collecting and recording their vaccination status. In accordance with data protection principles you must only use this information for the purposes for which you collected it and you must also ensure that employees are not subject to less favourable treatment because of their vaccination status.
You should consider whether your purpose for collecting the vaccination data could be served by collecting anonymised data. Anonymised data is not subject to the UK GDPR and may be sufficient where, for example, you want to gauge the vaccination levels and risk of infection in your workplace as part of a health and safety risk assessment. You must however make sure that the data is truly anonymised, meaning it is incapable of being used to identify an individual employee.
Sex And Pregnancy Discrimination
Pregnant or breast-feeding employees may be concerned that the COVID vaccines pose arisk to their baby. Or women may be worried about the vaccines impact on their ability toconceive or on the health of a future baby.
As we have seen, imposing sanctions for not being vaccinated is fraught with difficulty. It isimportant to act in a reasonable and proportionate way and to use persuasion wherepossible in preference to coercion. A dismissal in this situation might well be unfair.However, the chances of a successful discrimination claim seem lower.
A bigger risk, following the recent decision in Dobson v North Cumbria Integrated CareNHS Foundation Trust , could be requiring women, who are more likely to be carers,to return to the office. They may be able to argue that it is sex discrimination not to allowthem to continue working from home since they have shown this is sustainable.
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Employer Incentives For Covid
ADA: Employer Incentives for Voluntary COVID-19 Vaccinations
K.16. Does the ADA limit the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer ?
No. The ADA does not limit the incentives an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination, or to provide confirmation of vaccination, if the health care provider administering a COVID-19 vaccine is not the employer or its agent. By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADAs rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive. See K.17.
As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.
K.17. Under the ADA, are there limits on the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination administered by the employer or its agent?
GINA: Employer Incentives for Voluntary COVID-19 Vaccinations
K.18. Does GINA limit the value of the incentive employers may offer employees if employees or their family members get a COVID-19 vaccination from a health care provider that is not affiliated with the employer ?