UK COVID vaccination - returning to the workplace part 2

Question

Points to note

Can employers require existing employees to be vaccinated as a condition of employment?

Requiring existing employees to be vaccinated against coronavirus is a significant intrusion into their autonomy to choose and determine their own medical care.  It is likely that it will be justifiable only if the health and safety benefit to the employee or others outweighs that intrusion. 

Employers have a legal duty to ensure, so far as is reasonably practicable, the health and safety of employees and other people who might be affected by their business. Existing COVID-secure measures, such as testing, social distancing, ventilation and face-coverings, are deemed by the Government to be reasonable practicable measures to address workplace infection risks – not, at this stage, compulsory vaccination (a possible exception, currently subject to a public consultation, may be in older adult care homes). Unless this changes, it is unlikely to be justified on health and safety grounds for most employers. As things stand now, many employers would be exposed to significant legal risks if they sought to discipline or dismiss an employee who refused to be vaccinated.

Any employer that believes it can justify demanding that employees are vaccinated must ensure that it is not a blanket policy. For example, it would have to provide for flexibility to ensure equality laws are not breached (e.g. where employees, who are protected from discrimination, are unable to have the vaccine, such as those with certain health conditions including a severe allergy to the vaccine ingredients and for those younger employees not yet eligible for vaccination). A process to investigate fairly and reasonably each employee’s refusal to comply would be necessary to avoid other employment law risks. Practical considerations (there is no reliable way to evidence vaccination status currently) and data protection constraints would also apply (see further under the vaccine status and Covid-status certification questions below).

Can employers require new employees to be immunised as a condition of employment at the recruitment stage?

There are fewer employment law risks in requiring vaccination as a condition for new starters only, and not for existing staff.  However, an employer would still need to ensure its processes provide flexibility to avoid breaches of equality laws (see above).

The employer should be prepared to be able to justify, on health and safety grounds, why vaccination is necessary, including evidencing a real need which balances competing rights and interests. A blanket policy should be avoided (see above) with the employer prepared to be flexible to reduce discrimination risks. It is also unlawful for an employer to ask a job applicant health-related questions before making a job offer, unless an exception (set out in legislation) applies. Exceptions include: where it is necessary to determine if a job applicant requires any reasonable adjustments or to find out whether a job applicant will be able to carry out an intrinsic part of the job. So the question of an employee’s vaccination status should not be considered until an offer has been made.

Practical and data protection constraints also apply (see further under the vaccine status and Covid-status certification questions below).

Can employers require employees to have been vaccinated as a condition of entering the workplace?

A lower risk approach for employers who are concerned about unvaccinated employees in the workplace would be to allow unvaccinated employees to work from home where they can. This stops short of explicitly requiring vaccination for all existing employees. However, if employees cannot work effectively from home, and they are not permitted to enter the workplace unless vaccinated, this raises the same risks as requiring an existing employee to be vaccinated.

If employees would suffer detriment by having to work from home, a potential justification for such a requirement may apply where the workplace poses a particular risk. For example, in frontline healthcare roles if the particular circumstances show that the risk of infection remains high and it is not reasonably mitigated by other means. A Government consultation is currently assessing whether those attending older adult care homes to work should be required to be vaccinated, subject to a medical exemption.  

Once all adults have been offered the vaccine and the role of vaccination in risk mitigation is confirmed, the above considerations may change. However, it will continue to depend on the individual employer’s risk assessment and should be subject to exemptions on equality grounds.  Currently those who can work from home should continue to do so until the Government reviews the position.

Can employers demand to know the vaccine status of those employees attending a workplace, or more generally?

In this situation, an employer seeks vaccine status information, not to prevent attendance to unvaccinated employees, but to use the data to inform coronavirus risk assessment and mitigation decisions (e.g. reflecting the higher risk of infection for unvaccinated employees and initial indications suggesting reduced transmission amongst the vaccinated).

Employee vaccination status is personal data concerning health and, as such, it is special category data under data protection law. An employer’s use of this data must be fair, necessary and relevant for a specific purpose and employee consent should not be relied upon. A data protection impact assessment needs to be carried out to assess the privacy risks and appropriate steps to mitigate them. According to ICO guidance, employers must have a compelling reason for recording employee vaccination status and whether such a reason exists will depend on the individual workplace risks. Whether a legal basis exists for processing vaccine data will ordinarily depend on whether it is necessary for legitimate interests and for the protection of public health or to satisfy the employer’s health and safety obligations. The public health basis is building for an employer to know this information to inform workplace risk assessments, with the Government updated Roadmap stating that “vaccines have at least some impact on transmission” and a recent consultation noting that “there is evidence to suggest that the vaccine prevents those who catch the virus from infecting other people, preventing the spread”. However, any justification would depend on the individual workplace or an employee’s role, for example, whether there are people at risk of serious illness from COVID-19 present (older, clinically vulnerable etc) or where the employee is required to travel abroad to countries with higher rates of infection (or where vaccination is a condition of entry).

Will Covid-status certificates be available for workplace use?

In the absence of an official vaccine passport, or similar certification scheme, an employer seeking vaccine status information has no reliable and secure way of accessing the information.

It is too early to know whether an official certification scheme will be available for workplace use. The Government is conducting a review into Covid-status certificates and is due to report by mid-June. It states that status certificates aim to provide reassurance that an individual is at reduced risk of transmission (due to vaccination, testing or natural immunity).

The Government acknowledges that there are ethical, equality, privacy, security and practical issues involved. The Equality and Human Rights Commission, while not against them in principle, has called for a measured and proportionate approach, rooted in science and the law. If launched by the Government, the use of such certificates by employers should be justifiable, fair and reasonable, reflecting equality and other legal risks.

How should employers respond to an “anti-vaxxer” employee seeking to persuade colleagues not to take the vaccine?

An employer would need to balance freedom of speech with the severity of the behaviour, reasons why and the impact. For example, if false information is being spread which is causing a low vaccine take-up, the employee’s conduct will impact on the employer’s duty to protect staff, customers and visitors. In addition, employees also have H&S responsibilities: to take reasonable care for their own and others’ health and safety and to cooperate with their employer to help them meet their duties. Employers should amend disciplinary policies to make employees aware and investigate before taking any action. For example, to consider whether the employee is holding a genuine belief (and may be subject to discrimination protection) and the reasons for, and the nature and effect of, their behaviour.

Must employees be paid for time off to attend vaccinations?

There is no general legal right to paid time off for vaccination, however, if practicable, permitting time out to get vaccinated supports an employer’s health and safety duties to provide a safe place of work. The TUC has called on employers to provide paid time-off to attend vaccine appointments.

What practical steps should an employer be taking now in relation to vaccination?

After conducting/updating H&S risk assessments and data privacy impact assessments in relation to the role of vaccination in the workplace, employers should devise a draft vaccination strategy and policy, engaging with employees and any trade union/employee representatives to obtain feedback and to build support and understanding amongst the workforce.

A policy would be expected to include flexibility (to reduce discrimination risks outlined above), to provide for employees’ concerns to be raised as well as practical arrangements (e.g. how vaccine status is to be collected, if that is the decision) and any disciplinary considerations.

Reflecting the rapidly evolving situation, employers should anticipate the need to develop their approach, particularly if Government guidance supports the use of Covid-status certification (or other evidence of vaccination) to reduce the risk of transmission in the workplace.