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Face Masks, Testing and Vaccines – Managing Workplace Conflict

Face Masks, Testing and Vaccines – Managing Workplace Conflict
18 August 2021
 

Conflict between colleagues is a challenge all employers face, however COVID-19 has presented a new range of emotive topics that can cause conduct issues in the workplace.

Employment law and health and safety service provider Croner has produced a guide on managing a variety of conduct issues in the post-COVID workplace, exploring the most common COVID-related disputes.

 

COVID-19 Testing

 

Despite your own personal feelings on issues relating to COVID, there remains a duty of care towards your staff. This means encouraging them to follow COVID-secure measures, to protect themselves and each other.

Lateral flow tests that provide results within half an hour have been a central part of the UK government’s COVID response. Public Health England recommends testing twice a week (every 3 to 4 days) and many events and venues only permit guests who can prove a recent negative lateral flow test.

Staff have the right to refuse to be tested if they don’t want to be. Some individuals may find the testing process, of taking throat and mouth swabs, to be very uncomfortable. Others may feel it is unnecessary if they are not experiencing any symptoms. 

Croner advises that in this case, you should attempt to reason with the employees. Put the point across to them that the implementation of in-house testing is a crucial one. It will prevent asymptomatic cases from going undetected, reducing the spread of the virus. 

To ensure the health, safety and welfare of staff, an employer can argue it is a reasonable management instruction to be tested. Employees’ refusal to comply could be in breach of these duties as well as a failure to comply with their Health and Safety obligations but this depends on the overall context.

There could be a range of reasons employees may give for refusing testing. Some of these reasons may be legitimate. However, whilst employees may be able to show they are unable to have a vaccine as a result of their disability or pregnancy, it is hard for employees to argue that their protected characteristic prevents them from being tested. However, It is possible an employee with a phobia of medical procedures may be able to establish a disability.

If alternatives such as working from home are available, employees may argue that testing is not necessary because the employer’s health and safety obligations can be met in other ways.

 

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Picture: a photograph of a person using a COVID lateral flow test

 

Vaccinations 

 

Employees may refuse to take the vaccine because they’re not contractually obliged to do so. If this happens, you should think about sharing information with staff about the vaccine from official sources. This reduces the likelihood of them refusing to take the vaccine because of fears stemming from the spread of false information. 

The vaccine may be seen as much more medically invasive when compared to testing. For this reason, refusal can be related to reasons which should not be disregarded, e.g. allergies, pregnancy, and medical exemptions. Therefore, Croner doesn't advise taking disciplinary action against employees. Doing this may mean employers risk facing claims of discrimination or unfair dismissal. This could include constructive unfair dismissal. 

To deal with this, take similar steps in dealing with a refusal to engage in testing. This includes sending out information from reliable sources. In addition, you can keep staff working from home for longer or test staff at work. This will reduce the chances of the virus spreading within the workplace. 

 

Image

 

Mask Wearing & Other COVID-Prevention Methods 

 

As of 19 July in England, face masks are no longer legally required indoors, leading to individual organisations taking on the choice of whether to enforce their use or not.

However, the government’s workplace guidance says that employers should encourage the use of face masks, particularly in indoor areas where people may encounter people they do not normally meet. This is especially advised in enclosed and crowded spaces.

The CIPD recommends that employers “should probably require employees to wear masks when moving around buildings”, in busy reception areas, canteens, corridors, lifts or communal areas. 

Prior to the return to work, risk assessments should have been completed, including clear, actionable points and recommendations. These should be made available to staff and communicated clearly.

Any mandatory requirements for face masks within individual businesses should be subject to reasonable adjustments for those with any mental or physical reason or disability preventing them from doing so.

Picture: a photograph of some face masks

Article written by Ella Tansley | Published 18 August 2021

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