Legal update: Sick pay and vaccinations

Bela Gor, Business Disability Forum

Vaccinations, anti-vaccination, changing rules, sick pay and employers stuck in the middle during an ongoing pandemic

Opinions are divided and feelings are strong. I’m talking of course about COVID-19 and vaccinations.

The unvaccinated or “anti-vaxxers” are viewed by some as morally irresponsible and putting others at risk. On the other side, many people who are vaccine-hesitant or anti-vaccination believe that the vaccination is harmful, unnecessary or that having a vaccination would contravene deeply and sincerely held religious or philosophical beliefs. The pressure on everyone to have a vaccination is seen by some people as a draconian infringement of civil liberties and human rights and by others as the only way to get back to some semblance of safe normality. And then there are people who cannot have the vaccination or a particular type of vaccination for medical reasons.

Rules on self-isolation

In the middle of this are employers dealing with the ongoing effects of the pandemic including staff absences, the impact on customers, service users, patients, students, and everyone else who interacts with the organisation and, in many cases too, the bottom line. Ever-changing rules and differences between different parts of the country (not to mention the world) add to the complexities faced by employers. The omicron variant levels of infection have undoubtedly put a strain on service delivery because of the sheer number of people infected.

As the law in the UK currently stands, anyone who has COVID-19 or is self-isolating because a close contact has it, is eligible for Statutory Sick Pay (SSP). Many employers are also paying their employees contractual sick pay which is often much higher. The rules on self-isolation, however, have changed so that vaccinated close contacts no longer have to self-isolate provided they test negative for the virus. People who are unvaccinated, however, must still self-isolate for a period that might range from ten to five days depending on current guidance wherever they live.

Employers might be tempted to change their sick-pay policies and start to withhold contractual sick pay from unvaccinated employees who have tested negative but are self-isolating and so unable to go into a workplace. It is an understandable decision but one that is not without legal (and other) risks.

Making decisions

Employees who cannot have a vaccination for medical reasons or who choose not to be vaccinated for sincerely held religious or philosophical beliefs might well have discrimination claims against their employer in these circumstances. Continuing to pay full sick pay to disabled employees who cannot have a vaccination is likely to be a reasonable adjustment under the Equality Act 2010. The policy might say that employers will take into account such mitigating circumstances but the practicalities of knowing each mitigating circumstance and acting accordingly can be challenging. The strain on the health service, for example, means that there are delays in issuing medical exemption certificates so an employee might have difficulty “proving” their continued eligibility for sick pay. A process will need to be implemented that includes listening to the employee and making an appropriate decision about their individual circumstances. These conversations, initially at least, are likely to fall to hard pressed line managers on whom the organisation will have to rely on to make appropriate decisions. The process must also, of course, maintain confidentiality and not release medical or private details about an employee without their consent.

The effect on staff morale too cannot be underestimated. There is risk of further exacerbating those divisions and tensions between people who are vaccinated and unvaccinated or anti-vaccination which can only be a distraction from getting on with the job.

For more on vaccinations and COVID-19 generally, see our regularly updated Toolkit.