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Can A Business Make Vaccine, Masks and Testing Mandatory? Covid-19 Return to Work

15 January 2021

If you’re planning to get staff back to the office in 2021, you may be wondering where you stand with making the Covid-19 vaccine, testing or mask wearing mandatory for those who will be returning.

We answer those questions as well as raise key things to consider when planning a return to the office or workplace…

covid-19 vaccine

Mandatory vaccines, masks and testing at work for Covid-19. Is that allowed, and if so, what happens if an employee refuses? We round up the answers…

Can I require employees in the workplace to be regularly tested? What happens if an employee does not agree to testing?

You can offer tests to employees and the Government has published specific guidance for employers who are testing staff. Whether or not employers can carry out mandatory testing depends on the risk of Covid-19 in the workplace and if testing is a reasonable and proportionate way to control Covid-19. Before you go ahead with mandatory testing, it is worth taking specialist employment law advice on how this applies to your workplace.

If an employee refuses to take part in regular testing, you should find out why they are refusing and if this is reasonable. If testing is not proportionate for the workplace and the business could take other steps to ensure the workplace is Covid-19 secure (perhaps with more stringent cleaning or working from home) then it is unlikely to be reasonable to take any disciplinary action against the employee for refusing testing.

Should employees wear face coverings in the workplace?

This will depend on the type of workplace and the current Covid-19 guidance for that workplace. In addition, an employer’s risk assessment may establish that face coverings should be worn to ensure it is providing a safe working environment. Employers should be careful if introducing a policy enforcing face coverings as there is also a risk of unfairly discriminating against an employee who has legitimate reasons for not wearing one. Advice on this from acas can be found here.

What happens if an employee is refusing to wear a face covering?

You should speak to the employee about why they are refusing to wear one. Some employees may be exempt from wearing a face covering under the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) Regulations for health reasons and it may be necessary to consider if there are alternative options such as visors or screens. You may need to obtain medical evidence and a conduct a specific risk assessment in respect of an employee who is potentially exempt, to determine the risks.

If an employee is not exempt from wearing a face covering and still refuses to wear one, there may be grounds to start a disciplinary process, but you should seek specialist employment law advice before doing so.

What about the vaccine? Can I insist that employees are vaccinated?

The short answer is no but many employers do intend to encourage employees to get vaccinated. There will be particular workplaces where requiring employees to have the vaccine may be a ‘reasonable instruction’ but will this depend on the circumstances. For example, this would be reasonable in care homes where employees may otherwise be putting vulnerable people at risk.

Can Loch Associates Group help?

Yes, our experts from Loch Law, Loch HR and Loch Training & Wellbeing are all on hand to assist you with a plan to return to the workplace – including advice on mandatory vaccines, masks and testing at work for Covid-19 – when that becomes safe to do. Get in touch here.

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