Vaccinations against COVID-19 are not currently mandatory. However, the question remains as to whether employers will be able to make vaccination a condition of staff working or in the case of workforces that have been working from home, returning to the office.
This blog will outline what employers should consider when approaching the matter and the reasonable steps they could potentially take to protect staff.
Can employers require employees to be vaccinated?
While employers can adopt a vaccination policy encouraging staff to be vaccinated where possible, employers cannot typically require employees to be vaccinated (unless they work in a sector where a legal requirement has been introduced).
If employers wish for employees to get vaccinated, it is best to support them without forcing them to get the vaccine. If employers feel that it is important for employees to be vaccinated, they should speak to their staff and/or the recognised trade union to discuss what steps to take.
Any decision reached after such discussions, should be recorded in writing in, for example, a vaccination policy, and should be in line with existing disciplinary and grievance policies. Before adopting a vaccination policy, employers should consider:
- discussing the employer’s approach towards vaccines with their employees (eg whether vaccines will be required for a return to the workplace)
- that any incentives offered to receive the vaccination will not discriminate against employees with protected characteristics (eg disability or belief) who have reasons for not having the vaccination
- inform employees that travel for work, especially to high-risk countries (eg red list countries), that the vaccine will likely be necessary
- that any vaccination strategies must include exceptions for employees who cannot get vaccinated (eg due to medical or belief reasons)
Make your Employee vaccination policy.
Is making vaccination mandatory a reasonable measure to ensure a safe working environment?
There is the possibility that instructing employees to be vaccinated could be considered a reasonable requirement on the part of the employer. However, specific circumstances should be taken into account when deciding whether this is a reasonable step or not. For example, it could be considered reasonable if staff are working with vulnerable and high-risk groups, such as those in the social care sector. This is different to the circumstances of those working in professional services or in an office environment.
If employers can show that vaccination is the most reasonably practicable way of mitigating the risk of COVID-19 after they have carried out a risk assessment, they could in theory mandate vaccination as a health and safety requirement.
What does the Health and Safety at Work Act 1974 suggest?
Under the Health and Safety at Work Act, employers have an obligation to protect the health, safety and welfare of all their employees. To comply with these duties, it may be reasonable for employers to require employees to be vaccinated. Under the Act, employees also have a duty to cooperate with employers to ensure employers are able to implement the required health and safety measures.
However, it remains unclear whether the requirement to have a COVID-19-vaccine is classed as “reasonable” and whether an employee refusing a vaccine could amount to a health and safety breach.
For more information on health and safety in the workplace read:
- Health and safety
- Employer health and safety responsibilities for staff working at home
- Health and safety for employees working from home during the coronavirus crisis
- Risk assessments at work
What other factors should employers consider?
Employers should consider other factors such as:
- how they can best encourage voluntary vaccination eg educating staff on the benefits of vaccination
- creating a workforce where some employees go in and some can work from home
- whether or not employees can or should have to provide proof of vaccination (this could give rise to data protection issues)
- ensuring that vaccination is not viewed as the only method for preventing risk, especially when mass vaccination is in its very early stages. All other safe working practices need to be taken into consideration and implemented
Are there discrimination risks employers should be aware of?
Any difference in treatment between those that have been vaccinated and those that haven’t could amount to discrimination. Employers must be aware of protected characteristics and bear in mind the different reasons individuals may not want the vaccine or may not be able to get the vaccine.
Some of the protected characteristics employers should consider include:
- Religion or belief – under the Equality Act 2010 a belief is a “philosophical belief that is genuinely held, that is cogent, serious and applies to an important aspect of human life or behaviour”. Ethical veganism is one example of a belief that has been upheld to be a belief for the purposes of the Equality Act and therefore a protected characteristic. Therefore, ethical vegans could potentially refuse vaccination on the grounds of their personal beliefs, especially if the vaccine has been tested on animals or uses animal by-products and proteins.
- Disability – there may be individuals that are unable to take the vaccine due to certain medical conditions (eg because of a compromised immune system).
- Age – due to the government’s phased vaccine rollout, certain groups (eg children) have not yet been offered the vaccine.
For more information on equality in the workplace read equal opportunities and discrimination. For more information on staff vaccinations, read Coronavirus (COVID-19) vaccinations in the workplace.
Can employers record the vaccination status of employees?
Information about employee vaccination status constitutes ‘special category sensitive personal data‘ (as it relates to personal health) and employers who decide to keep a record of this data must do so in accordance with data protection laws. This is especially important as sensitive personal data is awarded greater protection than other forms of personal data (eg names and contact details).
The processing (eg collecting and recording) of sensitive personal data is not permitted unless the use of the data is fair, relevant and necessary for a specific purpose. For example, employers may ask employees about their vaccination status in order to comply with employment law, the employer’s health and safety duties and for reasons of the public interest in health.
When employers record information relating to employee vaccination status, this is processing of personal data. When collecting and recording such data, employers should:
- undertake a data protection impact assessment where the use of the data collected is likely to result in a high risk to staff (eg denial of work opportunities), as is likely to be the case with health data
- identify a lawful basis for processing (eg ‘legitimate interest’ for health and safety reasons)
- consider and document why other methods of protection are insufficient (eg social distancing, face coverings) and determine why it is necessary to collect data on staff vaccination
- inform staff about what personal data is required, what this data will be used for, who the data will be shared with, how long the data will be stored and what decisions we will make based on the data held
Read how to record the Coronavirus (COVID-19) vaccination status for more information.