Can an employer require employees to have a coronavirus (COVID-19) vaccination?
Employers have a duty to ensure, as far as reasonably practicable, the health and safety at work of their employees. Asking employees to agree to a vaccination against coronavirus (COVID-19) is likely to be a reasonable step to take to reduce the risk to employees’ health. Vaccinations are not currently available for employers to buy privately to provide for their employees, but employers can encourage employees to take up the vaccine when they are eligible under the national programme.
However, if employees do not agree to a vaccine, employers are limited in what they can do, beyond encouraging take up. An employer could consider informing employees that refusing a vaccination could lead to disciplinary action. There is a risk that such a policy could cause employee relations problems, as employees may feel strongly that this should be a personal decision. It would also raise a number of legal issues, with a particular risk of complaints relating to discrimination on grounds of religion or belief, disability and age; constructive dismissal; and human rights issues. Employers should be aware that employees may have a medical reason for not getting the vaccination.
It is currently unlikely that an employer would be able to use health and safety grounds to justify taking disciplinary action against an employee for refusing a vaccine, particularly in the early stages of the vaccination programme. This may change over time, when more is known about the effects of the vaccination programme, but there is still likely to be a very high threshold to meet to justify such a policy. It may be possible in exceptionally high-risk circumstances, where alternative measures have been taken into consideration and where the policy accounts for the particular circumstances of individual employees.
Can an employer place an employee on furlough if they need to stay at home to look after their children?
Yes. Guidance published by HM Revenue and Customs on the Coronavirus Job Retention Scheme confirms that employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19) can be furloughed, including employees who need to look after children.
An employee may be unable to work because they have no alternative childcare, for example if a school is closed during the coronavirus crisis, or if their child is required to self-isolate. An employee in this situation would not have the right to paid time off (unless provided for in their contract of employment), so a period of furlough may be a potential solution for both employer and employee.
To be included in a claim following the extension of the Coronavirus Job Retention Scheme from 1 November 2020, an employee must have been on the employer’s payroll on 30 October 2020 (or 23 September 2020 if they are rehired and furloughed, after the termination of their employment).
Do employers have a duty to take special measures to protect those employees who are most at risk if they are exposed to coronavirus?
Yes, employers must carry out a risk assessment for all employees, taking into account factors that make some people particularly vulnerable from coronavirus (COVID-19), and take steps to protect their health and safety.
NHS guidance sets out health conditions that could cause a vulnerability to becoming seriously ill from coronavirus. People at particular risk include those with weakened immune systems, older workers, and those with long-term conditions like diabetes and asthma.
Individuals at the highest risk of serious illness from coronavirus will have received a letter from the NHS advising them to “shield”. The government guidance refers to this group of people as “clinically extremely vulnerable“. If an employee in this group cannot work from home, their employer should consider furloughing them and making a claim for them under the Coronavirus Job Retention Scheme.
There is evidence that other groups have a disproportionate risk from coronavirus, including people from some black, Asian and minority ethnic groups and people with a high body mass index.
Employees who are at high risk because of an underlying health condition (whether or not they fall into the clinically extremely vulnerable group) are likely to be protected by the disability provisions of the Equality Act 2010. Where the Act applies, employers are under a duty to make reasonable adjustments, which may entail taking special measures to protect disabled staff, such as adjusting the role to allow them to work from home. Employers should consider such measures for all employees who have an increased risk from coronavirus, whether or not they are covered by the Equality Act 2010.
Employers must also ensure that they comply with their health and safety duties in respect of pregnant employees.
How should employers respond if employees are affected by school closures to prevent the spread of coronavirus?
There is limited statutory provision for time off for employees who have to look after their children when schools, nurseries and other childcare providers are closed. Employers should keep in mind that advice on self-isolation and social distancing during the coronavirus (COVID-19) outbreak is likely to make it more difficult for employees to make alternative arrangements for the care of their children. Employees may have no option but to stay at home themselves.
Employers should support an employee in this situation to work from home if possible and should consider making adjustments to the role and/or working hours to enable this. If the employer has a policy that employees should not be responsible for looking after their children at the same time as working from home, it may need to relax this policy.
Where the nature of the role, and/or the employee’s childcare responsibilities, mean that working from home is not an option, employers will need to consider alternative arrangements such as a period of furlough. Government guidance on the Coronavirus Job Retention Scheme confirms that employers can furlough employees who are unable to work because of caring responsibilities resulting from the coronavirus crisis. The guidance gives the example of employees who need to look after children.
Employees with at least one year’s service are entitled to up to 18 weeks’ unpaid ordinary parental leave for each child under the age of 18.
The statutory right to time off for dependants provides for a period of unpaid leave to take action necessary because of the unexpected disruption or termination of arrangements for the care of a dependant. This would cover time off to arrange alternative childcare in the event of a school closure, but it does not cover extended time off for employees to look after their children themselves. Some employers may have a policy on time off to care for dependants that is more generous than the statutory minimum.
Can an employer place an employee on furlough if they need to stay at home to look after their children?
Yes. Guidance published by HM Revenue and Customs on the Coronavirus Job Retention Scheme confirms that employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19) can be furloughed, including employees who need to look after children.
An employee may be unable to work because they have no alternative childcare, for example if a school is closed during the coronavirus crisis, or if their child is required to self-isolate. An employee in this situation would not have the right to paid time off (unless provided for in their contract of employment), so a period of furlough may be a potential solution for both employer and employee.
To be included in a claim following the extension of the Coronavirus Job Retention Scheme from 1 November 2020, an employee must have been on the employer’s payroll on 30 October 2020 (or 23 September 2020 if they are rehired and furloughed, after the termination of their employment).
What should an employer do if an employee who is shielding because they are clinically extremely vulnerable from coronavirus cannot work from home?
People who are at very high risk of severe illness from coronavirus (COVID-19) because of certain underlying health conditions are referred to as being clinically extremely vulnerable. These people would have received notification from the NHS that they are in this group and would have been advised to “shield” at various stages of the coronavirus pandemic (depending on local and national restrictions in force).
Employers who have clinically extremely vulnerable employees should ensure that they are aware of the most up-to-date guidance for their region. For example, current government guidance applicable to England is that clinically extremely vulnerable employees should not attend the workplace.
An employee who is in the clinically extremely vulnerable group is likely to be a disabled person under the Equality Act 2010. Their employer must ensure that it does not discriminate against them because of something arising from their disability, ie because they are shielding, and must consider what reasonable adjustments should be put in place for them.
Where a vulnerable employee is not able to do their own job from home, but could work from home in an alternative role, it is likely to be a reasonable adjustment to allow them to do so.
Where working from home is not possible even with adjustments, the employer should consider furloughing them under the Coronavirus Job Retention Scheme. HM Revenue and Customs guidance on the scheme confirms that employees can be furloughed in these circumstances.
If an employee is advised to self-isolate to avoid the risk of spreading coronavirus, are they entitled to sick pay?
Current government guidance is that anyone who has a high temperature, a new continuous cough and/or a loss of, or change in, their normal sense of taste or smell should stay at home (ie self-isolate) for at least 10 days from the onset of symptoms. If they live with others, everyone in the household should stay at home for 10 days, even if they have no symptoms. Someone without symptoms who has tested positive for coronavirus (COVID-19), must self-isolate for at least 10 days from the date of the test.
People may also be instructed by the NHS test and trace service to self-isolate if they have had close recent contact with someone who has coronavirus (COVID-19).
Employees who are staying at home in accordance with government advice or advice from the NHS test and trace service, are entitled to statutory sick pay (SSP), even if they are not ill.
Employees who are unable to work because they are “shielding” due to being at very high risk from coronavirus because of certain underlying health conditions are also entitled to SSP.
The Government has introduced temporary legislation with the effect that individuals who are unable to work because they are self-isolating or shielding are deemed to be incapable of work for the purposes of SSP.
People who are required to self-isolate after travelling abroad are not entitled to SSP, unless they are ill.
What obligations does an employer have to an employee who lives with someone who is at very high risk of serious illness from coronavirus?
People who are at very high risk of severe illness from coronavirus (COVID-19) because of an underlying health condition have previously been advised to “shield” themselves by staying at home as much as possible. Government guidance on shielding for clinically extremely vulnerable people, includes a list of those included in this category. These people will have been notified by the NHS that they are at very high risk.
People who live with someone who is in the clinically extremely vulnerable group are advised to follow the guidance on social distancing carefully. However, they are not required to take the shielding measures themselves.
Employers should discuss the options with individual employees who live with someone who is clinically extremely vulnerable. It may be appropriate to take measures to allow them to work from home, or for them to remain on furlough for longer than other employees.
Can an employee be furloughed if they are on maternity leave, or other family-related leave?
Guidance published by HM Revenue and Customs (HMRC) on the Coronavirus Job Retention Scheme confirms that employers can claim under the scheme for employees who are on family-related statutory leave.
The employee should continue to receive any statutory maternity or other family-related pay to which they are entitled while they are furloughed. The HMRC guidance confirms that employers can claim through the scheme for enhanced contractual maternity or other family-related pay they pay to furloughed employees.
Where an employee has exhausted their entitlement to maternity pay, they may wish to agree with the employer to end their maternity leave and be furloughed, if this would allow them to receive 80% of their wages (up to £2,500 per month). Employees who wish to return early from maternity leave should give their employer at least eight weeks’ notice, or the employer can agree to a shorter notice period. The HMRC guidance states that the employer cannot furlough an employee before the end of the notice period.