Can employers force employees back to the office or to get the COVID-19 vaccine?
The entire nation now appreciates how uncertain the pandemic has made the world of work, and even with lockdown restrictions easing alongside vaccination efforts increasing, it’s not about to get much easier. Now new questions are presenting themselves in the workplace:
Can you force employees back to work?
Can we force people to get back into the office?
Can we force people to have vaccinations?
The answers to these questions may not be as cut and dry as they seem – it’s a minefield of rules and regulations for your HR team to navigate. Take a look as we explore the topic of encouraging a return to the workplace in the time of the COVID-19 vaccine.
Can employers force workers back to the workplace?
The official government advice as it stands is still to ‘continue to work from home if you can’. Your HR team must consider that even though the situation is slowly improving, many workers may not feel comfortable enough to return. Even after 21st June 2021 (government roadmap permitting) – which gives you the right to ask teams to return to the office – employees will sustain the right to ask for a flexible working arrangement.
Be it the resistance to commute on public transport the same as before or qualms with how busy the workplace may be; even if the government’s advice was to start to return to the office, it’s difficult to instate a return to the workplace as a mandatory requirement at this time.
Can employers force employees to get vaccinated?
In the same way you can’t force employees to get a COVID-19 test, you also cannot force them to get the COVID-19 vaccine. There’s a requirement for individuals to be given enough information to help them make the decision for themselves to consent to the vaccine, but the government has not made the vaccine mandatory, either in the workplace or in general.
Not only that, but employers cannot legally ask workers whether they’ve had the vaccine, however, employees and candidates can ask you whether everyone else in the workplace has been vaccinated (most commonly to aid in their decision of whether to return to work or not). It’s a confusing time for HR professionals: red tape around some aspects of the fight against COVID-19 at work and gaping holes in other aspects.
And these questions are just scratching the surface – there are further, more complicated business implications to consider.
Deeper implications from pressuring workers to get back to the office or to get the vaccine
Your people are your powerhouse, we get it, but they should also be your priority. Along with sustaining their wellbeing and respecting their decisions, there are also legal and even brand-damaging implications to consider. Implications that, for the most part, have not yet presented themselves in the working world.
Our HR experts at Gingko have looked to the future to explore possible outcomes and negativities surrounding this subject during the ongoing pandemic.
Business implications
From a legal standpoint, implications on the return to work can stem from whether you have an employment contract which states where an employee’s place of work will be. If it stipulates they are to be in the office or equivalent and said workplace is open again, then technically that is where they should now be.
But if you’ve moved offices or cancelled the lease on the aforementioned premises, that makes negotiating this technicality all the more difficult. If there is no longer a possibility of working from the specified address in the contract, there is an arguable claim against you for breach of the employment contract should you force employees to come in.
However, if a job can’t be satisfactorily completed from home (and you can evidence that), team members have fewer rights to continue working away from the office and therefore a claim to continue doing so would be less valid.
Another angle is if an employee feels that they cannot work in the new way you have asked of them (in this case, by asking them to return to the office) and the business makes them feel like they have no choice but to leave, they may have a constructive dismissal case against you.
It’s a similar outlook if workers feel pressure around vaccinations too – as you cannot legally question whether they’ve been vaccinated, adding pressure to do so should be explicitly avoided.
The important thing to remember is that every implication for an employee explored above can cause a reactive response to your organisation, leading to deeper business implications and even legal quarrels and expense.
Employee implications
All of these changes – every change that has occurred in the last year and continues to occur now – are impacting your employees on both a professional and a personal level. From job uncertainty and furlough through to working from home and adapting to a completely new lifestyle, they’ve been through a lot.
If they then feel pressure to come back into the office or get vaccinated against their will, or even be judged for their choices by coworkers or leaders, it could be a breaking point for their patience under your employment. The last thing your business wants to do is lose workers to competitors or get a bad reputation that can live forever on sites like Glassdoor.
Similarly, if employees feel they are being discriminated against based on their choices, i.e. if your organisation forces them to prove their vaccination status, they have every right to open discriminatory arguments. In an employment market making bigger and bolder moves towards diversity and inclusion, employees will likely leave your business if they feel their life choices are not represented by the brand.
So, what can you do to encourage employees to get vaccinated and back into work?
Fear not: there are still steps you can take to gently nudge employees in the direction your business prefers while stopping unforeseen business implications in their tracks.
Steps you can take
You can introduce optional lateral flow testing in the workplace, however, your teams must follow data protection law meaning only those who test positive and need to self-isolate can be identified. Of course, it has to be their own decision to even take part, but knowing that the employer is taking reasonable steps to protect the workforce might just encourage those teetering on the edge of a decision to return to work.
It’s a delicate situation, so simply asking employees what they would prefer to do will help them to feel as though they are being listened to. Alternatively, introducing a rota where employees come into the office two or three days per week, taking it in turns, helps to maintain safety and distancing guidelines.
Many are also taking part in the UK’s largest vaccination effort of all time by gently encouraging employee vaccinations. So far, 9 of the UK’s largest employers are supporting the promotion of positive vaccination messages to their sum total of 240,000 employees. They have also pledged to be flexible around vaccinations to take place during working hours, all in the name of workplace safety.
With large influential organisations taking charge, many other businesses are following suit, in turn offering flexibility when it comes to vaccination timetables and producing positive internal marketing to encourage their employees to get on board. Some are also offering sick pay for time off due to any side effects after the injection, including fever and headaches.
These are simple measures you too can reasonably introduce to help your employees feel comfortable returning to work.
Big picture thinking
Quick fixes are a saving grace at times like this, but there is a better way. Going forward, big picture thinking is vital for the survival and success of your business. So, instead of tackling the return to work and employee vaccinations on a case-by-case basis, you should reevaluate your current HR approach, practices and structure to acknowledge the changes which have come to pass.
If the above insights haven’t convinced you already, it will soon become clear in the workplace that your business needs to take action. Leaders should take note of the bombardment of new questions and unusual situations which will undoubtedly unfold in the upcoming weeks and months. From this, you’ll begin to see trends, perhaps with employee sentiment towards your communication during the pandemic or the lack of ability to disclose whether the rest of the workforce has been vaccinated, for example.
Every additional effort should be taken to ensure employees remain fulfilled at work and keep a steady stream of talent interested in working at your organisation. Rather than approaching working during COVID-19 in a reactive manner (like when a problem or hard question has already come to light), try to foresee an upcoming problem and provide a solution proactively.
Ultimately, this is a confusing and complicated situation with many layers for employers. The key is that businesses need to start taking an even more personalised approach to their HR, understanding that not all of their employees will feel the same or want the same thing. Your people need to be seen and heard, feel represented, understood and know choices have been taken seriously. Ensure your HR going forward emanates this sense of acceptance and encouragement.
If you want support from people who see these tricky situations differently and for what they really are, speak to one of our experts today.
