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Out-Law News 2 min. read

NI employers should consider Covid vaccination policy

Employers in Northern Ireland should develop a policy around Covid-19 vaccination ahead of the return of staff to the workplace which takes wider public health measures into account, the Labour Relations Agency (LRA) has said.

The LRA, which is Northern Ireland’s employment relations service, has published a sample vaccination policy for employers along with guidance on related ethical, legal and practical issues (12-page / 635KB PDF). The guidance states that employers should approach the issue of vaccination in a “voluntary and encouraging way”, while recognising that other measures need to be put in place to protect staff and comply with employers’ legal obligations.

Belfast-based employment law expert Paul Gillen of Pinsent Masons, the law firm behind Out-Law, said: “The guide will be useful in getting employers to consider a range of matters when considering employees returning to the workplace”.

“However, employers should be aware that this is an ever-changing landscape and we will continue to see emerging guidance which employers will need to be aware of and be ready to review their approach over the coming months,” he said.

There are difficult decisions to take in this area, and employers will be paying close attention to emerging trends

Under the 1978 Health and Safety at Work (Northern Ireland) Order, employers have legal duties to make the workplace safe and eliminate or control risks to health. While the legal position gives employers justification to encourage their employees to be vaccinated, the guidance states that it cannot be used to justify a blanket ‘no jab, no job’ policy as this “belies the fact sensitivities around each person and each workplace”.

The guidance encourages “open and honest communication” between employers, staff and employee representatives, to help employees to make an informed choice around vaccination. Where an employee is hesitant or refuses vaccination, the employer should “[listen] to their concerns with empathy, [take] those seriously and [respect] the need for confidentiality”, and should consider “alternative solutions” in line with government guidance where the employee opts not to be vaccinated.

Employers should continue to follow public health advice and any relevant regulations applicable to their workplace, including continuing to question whether staff returning to the workplace is “essential” and ensuring preventative measures such as screens, personal protective equipment and social distancing are put in place for those who do return, according to the guidance. Risk assessments should be carried out and updated regularly, and correspondence around encouraging vaccination kept.

The guidance also considers the legal issues around mandating regular workplace virus testing as a Covid-19 safety measure. As with vaccination, testing should be voluntary in nature, although the guidance notes that government information and advice on this topic is still in its early stages. The Department of Health introduced a voluntary workplace testing programme for employers with 50 staff or more operating in certain sectors of the economy in April, which has since been extended to employers of 10 or more employees who cannot work from home in any business sector.

Paul Gillen said that the extended asymptomatic testing programme was a “worthwhile measure” for employers in Northern Ireland. Employers can register with the Department of Health online, which will then work with the employer to identify the most appropriate form of testing based on their requirements.

“There are difficult decisions to take in this area, and employers will be paying close attention to emerging trends – especially where vaccination is being considered important for the safety of other employees and service users or customers,” he said.

“The guidance rightly considers the legal implications of imposing mandatory testing and vaccination on employees including contractual issues and employee relations, as well as potential discrimination issues,” he said.

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