The rollout of Covid-19 vaccines is continuing apace. The UK Government aspires to offer a first dose to all adults by the end of July 2021 and, with a third vaccine now being used in the UK, vaccination is becoming a closer prospect for many more of the working population.
Despite initial talk of ‘no jab, no job’, most employers appreciate the need for pragmatism. Employers not only lack control over vaccine roll-out (currently) but scientists are also speculating that Covid-19 measures may be needed for years to come, meaning that a longer term and more nuanced strategy for vaccination and health and safety compliance is needed in the workplace.
Fundamentally, any successful vaccination programme relies upon consumer confidence. Employers have a part to play in that but, when it comes to the association between vaccination and work, here too it is confidence that lies at the heart of, and should inform employer strategy. Mutual trust and confidence is the cornerstone of the employment relationship, both legally and practically. It is vital, therefore, that employers do not overlook this and risk breaking an essential element of their contract with employees in the approach they adopt to facilitate a return to work, including vaccination.
We consider below just a few aspects of vaccination strategy where a failure to consider employee confidence could be particularly relevant.
Seeking confirmation of employee vaccine status
Although a common requirement in some specific sector job roles, for example within the NHS, seeking worker confirmation of vaccination status is intrusive and needs to be carefully considered. the potential use and extent of ‘vaccine passports’ but is yet to reach a conclusion. The critical question will be, of course, what the employer does with this information and how it impacts the individual. It also seems increasingly likely that booster injections may be needed. Will employers therefore seek regular status updates and, if so, how will these be managed?
In terms of data protection law, information about the vaccination status of employees is ‘special category data’ and can only be sought by the employer where there are lawful grounds. Before asking employees for evidence of vaccination, therefore, employers should carry out a data protection impact assessment to determine if processing vaccine data is necessary to protect the health and safety of workers and others. Guidance from the Information Commissioner is that, ‘your reason for recording your employees’ vaccination status must be clear and compelling’.
If legal justification for seeking vaccination status is established, employers may only use this information for a necessary and specific purpose. Staff trust and confidence in the processing of their data is vital so, if vaccination status information is to be requested, it must be necessary for a lawful purpose and in line with privacy notice(s) provided to employees – which may require updating as a result. Employers will need to communicate clearly with employees and ensure that employees understand the implications of their status, whether positive or negative.
Should employees perceive that the vaccination information they supply will not be adequately protected, or will be used unreasonably to their detriment, they will either refuse to provide it or will challenge the employer’s breach of data protection obligations. Either step could prove costly for the employer.
Some employers may wish to introduce a contractual requirement of vaccine status disclosure for new recruits. While in some respects this is more straightforward, legally, this step also carries data protection considerations (given that employers will still need a legal requirement or public health reason), as well as discrimination risks, so should be pursued carefully. At present, employers also need to factor in that younger workers are generally not yet eligible for vaccination, leading to potential issues of age discrimination in addition to the risks of discrimination on the grounds of other protected characteristics. The creation of a two-tier workforce in this respect may not be helpful in practice.
Refusing employees entry to the workplace without vaccination evidence
While stopping short of explicitly requiring vaccination, employers might instead want to prevent attendance at work by those who have declined the vaccine on becoming eligible (including at client/customer premises). This highlights the often difficult and competing interests employers are grappling with in terms of the duty of care, not only to the particular (would-be excluded) worker but also to their colleagues and wider contacts.
Currently, there is no clear evidence that vaccination prevents virus transmission. Therefore, Covid safety measures need to remain in place. Many employers are also looking to extend home working. As a result, employers may find it difficult in such cases to justify employee exclusion based solely on their vaccination status.
As the science evolves over virus transmission and vaccines are rolled out, employers will need to review the position and the balance of health and safety issues. An important consideration in this context will be employee perception of their safety at work. While not determinative of policy by itself, the principle of trust and confidence is sufficiently wide to include health and wellbeing as an aspect of working. Failure to address this, as part of an overall strategy could therefore expose employers to significant employment relations problems and, potentially, to refusals to attend the workplace due to concerns of a serious threat to a worker’s safety.
Requiring foreign travel
As the Covid pandemic has spread, access to foreign travel has been variable and is currently very limited. The imposition of quarantine is also a deterrent. Once travel resumes, the usual health and safety and commercial considerations will apply for work purposes. Importantly, however, two essential factors have changed in light of Covid-19 and will need to be carefully considered by employers; the explosion of virtual interaction and the role that proof of vaccination may play in the introduction of vaccination passports as a condition of foreign travel.
In the former respect, such an extensive switch to online interaction over the last year only serves to diminish arguments as to why foreign travel might be an essential part of many roles, going forwards.
Where foreign travel for work is still required, while employers have no control over the requirement for vaccine passports, they will nonetheless need to address the practical and legal implications. Broader arguments around vaccination and disclosure of vaccination stats will become more focused upon whether either is a reasonable requirement for a role requiring foreign travel.
Although the employer’s hand may in some cases be strengthened, contractually and lawfully, to insist the employee responds reasonably to an instruction to travel (including compliance with vaccine passport requirements), employers should not be heavy handed. There may be legitimate reasons, even in this scenario, for a refusal to travel or to disclose vaccination status and, in any event, depending on the approach adopted by individual countries, taking a Covid test may be permissible as an alternative to vaccination. It will be incumbent upon employers to enquire and to assess the response before taking further steps if they are to manage the situation and avoid unnecessary resignations and potentially claims of constructive dismissal and discrimination.