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What if the CEO asks me about…. whether employees need to be vaccinated before coming back to our premises

25 February 2021. Published by Patrick Brodie, Partner and Jon Bartley, Partner

With Monday's announcement from Boris Johnson, and the vaccination programme gathering speed, you will, hopefully, soon be re-opening your stores and offices, bringing more of your colleagues back to work.

As you plan for re-opening, there are a number of health and safety considerations, not least the role of the vaccine, and it is clear that balances will need to be struck: a "one size fits all" approach across your property portfolio and for all your colleagues is unlikely to work. 

The vaccine question

One of the most topical questions being asked at the moment is whether you can insist that your colleagues are vaccinated before they return to the workplace?

There are important caveats to any policy on vaccination; a blanket policy, including the wholesale introduction of a new contractual term for the entire workforce, despite what you may have read in the papers recently, is not going to be workable. Indeed, the Government, the CBI, CIPD and some US employer groups have expressed an unease on an employer requirement for vaccinations.

However, if you really believe the benefits of requiring a vaccination to work, having tested the alternatives to this instruction, outweigh the disadvantages (including public/consumer/employee perception), in many individual cases, you could require an employee to be vaccinated before coming to work.  

But remember there will be individuals who are exempt from the vaccination, and for whom such a requirement would be unlawful. Such exemption may, for example, be for medical reasons or pregnancy. For those exempt colleagues, you will have to consider alternatives in order to ensure a safe workplace for all, such as:

  • Regular private testing or lateral flow testing.
  • Allowing the individual to move to a lower risk environment (e.g. from the shop floor into an office-based environment, or into a role where work can be conducted from home - recognising that if a person can work from home they must).

For colleagues who, because of personal preference and not a protected characteristic, do not want to be vaccinated, it is easier to see that action can reasonably be taken against them, if vaccination is, also, necessary. Separately, where employers have terminated the employment of individuals who have ignored instructions to stay at home because they have a communicable infection, the justification to take action is clear. 

Before adopting an approach, seeking out and listening to the voice and worries of colleagues will help better define your approach to any insistence on vaccination. The view of the public towards compulsory vaccinations will also be important - if employer associations and employee groups are bellwethers for that public opinion, compulsory vaccination policies are, currently, on the wrong side of that opinion.

The vaccine and GDPR

You will also need to address data protection compliance when planning how to respond to the vaccination of colleagues or their failure to get vaccinated.  A good place to start is the ICO's COVID-19 guidance which has recently been updated to cover GDPR compliance when collecting data relating to employee vaccinations (see Coronavirus recovery data - protection advice for organisations - vaccinations). 

The vaccination status of your colleagues, as health data, is "special category data" making it more difficult to justify collecting and processing the information. However, if there's a compelling reason to collect the data, you may be able to rely on the condition that it's necessary to process the data to comply with legal obligations in connection with employment, or that it's necessary in the public interest relating to public health. For example, if you wanted to use vaccination status data to help plan safe workforce rotas, particularly for customer-facing roles in-store, this is likely to satisfy one or both of the above conditions.  

Other things to bear in mind from a data perspective, include:

  • The vaccination status of an individual should not be routinely shared with colleagues - limited access for HR managers should be acceptable but there are unlikely to be compelling reasons for general disclosure.
  • You should be transparent with your colleagues regarding the collection and use of the data.
  •  If the use of such data could involve high risk (such as denying employment or benefits), a data protection impact assessment will need to be completed.

Other health and safety considerations

On top of the vaccine question, there are other health and safety obligations you need to consider. The first step is to review the relevant Government guidance on making your workplace COVID-19 secure, to be found in this link: Working safely during coronavirus (COVID-19). For many, this will be familiar ground.  Alongside completing a COVID-19 risk assessment, key actions include:

  • More frequent cleaning of stores, warehouses and offices.
  • Can you improve ventilation?
  • Ensuring signage reminds customers to wear face coverings where required to do so by law and to socially distance.
  • Participating in NHS Test and Trace by keeping a record of all colleagues and contractors who are onsite for 21 days.
  • Communicating and training - making sure everyone is kept up to date with the current safety measures and requirements.

And finally, don't forget the mental health and wellbeing impacts of COVID-19 on colleagues - the Government's Guidance for the public on the mental health and wellbeing aspects of COVID-19 is a good place to start.

Disclaimer: The information in this publication is for guidance purposes only and does not constitute legal advice. We attempt to ensure that the content is current as at the date of publication, but we do not guarantee that it remains up to date. You should seek legal or other professional advice before acting or relying on any of the content.

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