Should unvaccinated employees be separated from the rest of the workforce?

With restrictions back in place, the Omicron Covid-19 variant spreading rapidly, and more political uncertainty on the horizon, Business Leader looks into the issue surrounding unvaccinated employees.

Segregating vaccinated and unvaccinated employees?

An estimated 92.5% of the adult population in the UK tested positive for COVID-19 antibodies during the first week of November 2021, largely due to the fact that over 50 million of them have had at least one coronavirus vaccine. However, the topic of vaccinations can be a divisive one, much like smoking.

Whilst once smokers and non-smokers mingled at work, at restaurants and in other venues, separate areas came into force, before a total ban in the UK on smoking in public spaces indoors.

And it seems a similar shift in attitude is emerging in relation towards those who are unvaccinated. New Zealand’s new traffic light system means that people who are vaccinated with have a high level of freedom while those who haven’t had the jab will be banned from many activities when Covid-19 cases are high. Italy has also banned unvaccinated people from planes and trains.

Is this likely to translate to the workplace?

Peninsula’s HR Advice & Consultancy Director Kate Palmer understands employers’ concerns but explains segregation in the workplace could become a one-way ticket to a discrimination claim.

She comments: “Segregating workforces – regardless of cause or reasoning – will always pose some element of risk to employers. Generally, treating employees differently increases the chances of indirect and direct discrimination, constructive dismissal and/or unfair dismissal claims being raised.

“We have received calls from businesses asking if they could have separate working areas for vaccinated and unvaccinated employees. Whilst this might initially seem like an effective way of controlling spread of the virus, in practice, it’s more likely to lead to an increased number of vulnerable individuals who are medically exempt from having the vaccine being in close contact with each other.

“Additionally, some employees who are medically exempt but have chosen not to disclose underlying health conditions to colleagues, may also feel like their separation from the wider workforces highlights their medical issues, thereby breaching the implied term of trust and confidence in the employment relationship.

“Employers should also keep in mind that any information relating to an employee’s health is protected information for which they could risk GDPR-related claims for sharing without express consent.

“Similarly, by creating a divide, employees may worry over where the line is drawn – for example, they may raise concerns about being overlooked for promotion opportunities, not given the same training or mentoring, or missing out on socialising and networking. In situations whereby an employee has reasonable grounds for refusing vaccination, such as their religious beliefs, pregnancy or other, employers may be indirectly discriminatory if they place them at a detriment for not having the vaccine.

“In order to both protect your business and avoid tribunal claims, I would say it’s always best to keep all employees together but ensure COVID-secure measures are in place and resources are available to encourage those employees who can get the vaccine to do so.”

Unvaccinated people are top workplace worry for British employees

As the new Covid-19 variant, omicron, threatens to spread across the globe, research from Infogrid, the smart building platform, reveals that people who have not had their Covid-19 vaccination have become a major barrier to employees wanting to return to the physical office.

Over half (57%) of UK employees who attend or expect to return to the physical workplace said they are worried about encountering people at work who are not vaccinated.

As the UK heads into winter, flu season is another factor worrying UK employees about being in the office. Of those who attend or expect to return to the physical workplace, 58% are worried about getting sick from being at the office during flu season.

When looking at what would have a high impact on how safe employees do or would feel at their workplace, the top three measures from the research include regular and thorough cleaning (47%), hand sanitiser dispensers (38%), and improved air quality to reduce the spread of COVID-19 (35%).

Demand for a healthy workplace

A poll of 2,000 UK employed adults who don’t normally work from home also found 57% of UK employees say the ‘healthiness’ of the working environment has a moderate or high impact on their physical wellbeing, and 55% say it has a moderate or high impact on their mental wellbeing.

With 63% of employees saying they are more concerned about the ‘healthiness’ of their workplace than since the COVID-19 pandemic began, it is clear their demands have shifted from traditional office perks such as free food and location, to measures that protect their health and wellbeing.

Keeping employees safe at work

The research shows crucial factors in the healthiness of the workplace environment include access to fresh air, well managed occupancy, regular cleaning services and access to workplace data including virus risk.

Of those who are worried about attending the workplace with unvaccinated people and/or during flu season, 52% say they would feel safer about going to the physical workplace if there were efficient and regular cleaning services. This was followed by controlling the number of people in the workplace (49%), availability of face masks (46%), and better facilities to reduce virus risk (42%).

Over half (58%) of those who left their workplace and have not yet returned agree they would feel more comfortable returning to the workplace if their employer was using data to improve the ‘healthiness’ of the building/workplace”.

William Cowell de Gruchy, CEO at Infogrid, comments: “Employees are returning to the office, but their expectations have changed. Going back to the physical workplace is having an impact on the health and wellbeing of employees – especially with the new omicron variant now detected in the UK.

Whatever your views on whether to vaccinate or not, we believe that every employee deserves to feel safe in the office. Monitoring and improving the quality of the ventilation in the office can reduce the virus risk by up to 80%. At a minimum, employers should take the opportunity to understand how their working environment is functioning to be able to make informed decisions on how to create a healthy workplace.

As we navigate new ways of working in the office, employers need to reassure their staff that they’re taking steps to lower the virus risk in shared office spaces, as well as improving the general environment of the building.”

Potential impact of vaccine mandates on the workforce

Another important consideration is the possibility of vaccinated and unvaccinated people having to work together in close proximity. Could an employee refuse to sit next to somebody who is unvaccinated? In order to find out whether you could refuse to do this, Business Leader spoke to Karen Murray, an Associate at law firm Slater & Gordon.

Vaccine mandates have so far only been applied to frontline NHS workers in England. Under Plan B, mandatory vaccinations certificates would only be necessary for attendees of large nightclubs and large venues.

Whilst employers have a duty to protect the health and safety of employees, there is a great risk to employers outside of the health and care sectors enforcing mandatory vaccinations. There is a potential for employees to bring claims for unfair dismissal as well as discrimination on the grounds of disability, religion and philosophical beliefs.

Before making vaccinations compulsory, employers should ascertain whether other less severe actions may be sufficient. They should review their COVID risk assessments and consider reintroducing measures such as wearing masks, access to hand sanitiser, social distancing and improving ventilation. This may avoid vaccinated and unvaccinated people having to work within close proximity.

If a vaccinated employee refuses to sit next to an unvaccinated employee, they may face disciplinary action for failing to follow a reasonable management request. This would really be taking things a little far, however.

Before taking any action, an employer should consider the reasons for the employee’s concerns. If the employee has legitimate concerns that sitting next to someone who is unvaccinated puts them at a higher risk of contracting COVID-19 (or maybe due to them suffering a medical condition), any resulting disciplinary action may give rise to an unfair dismissal claim or a claim for disability discrimination. Health and Safety law tends to supersede most other legislation and is likely to mean that having a valid or reasonable belief in a risk of infection is a fair reason to refuse to sit next to an unvaccinated person.

At this stage, it is unclear how the courts and tribunals will deal with claims relating to the vaccination. However, the guidance recommends that employers should encourage and support employees to get vaccinated.