COVID-19 vaccinations, testing and Employment issues for schools

6 January 2021

The country has seen light at the end of the tunnel with the approval and start of a vaccine roll-out, which it is hoped will prevent the spread of coronavirus and allow us to return to a more normal way of life. Whilst the focus has been on the vaccine, private testing has become more widespread with many organisations offering rapid tests at a relatively low cost.

Will schools be able to require staff to be vaccinated?

In most sectors, including in schools, it's unlikely that it would be reasonable for employers to require all staff to be vaccinated. There could be valid reasons why an employee is not able to have the vaccine, such as a medical condition or religious beliefs, so imposing such a requirement risks a discrimination claim.

For those employers with specific regulatory requirements, for example, those employing healthcare professionals who must ensure their staff do not pose a risk to those they are treating, they may be able to make vaccination a requirement of employment but only at the point that it is available to staff.

Can schools ask for evidence that an employee has been vaccinated?

It is unclear at this stage whether schools will be able to justify collecting this information, as this will depend on whether the vaccine will affect the covid-secure practices that schools have worked so hard to put in place.

However, as all employers have a duty to protect the health and safety of their staff, it is possible that this could be used as a basis to collect this information lawfully. Schools should, of course, be mindful of complying with data protection legislation whenever they collect new categories of data.

Can schools buy vaccines to administer to their staff?

We are in the early stages of the vaccine roll-out and, currently, they are not available to be bought privately. However, with many more possible vaccines on the horizon, it is possible that they may be available for employers to purchase in future, as some currently do with flu vaccinations. Where there is no specific regulatory obligation to protect third parties, schools are still unlikely to be able to force staff to have the vaccine, but it may be provided as an optional 'benefit' to encourage higher take-up amongst staff.

Can schools introduce testing for all staff?

Yes, schools could offer voluntary testing for staff but it is difficult to justify mandatory testing. There is a risk that schools could face claims of unfair dismissal on the basis that the requirement to take a test could be a breach of mutual trust and confidence, or claims for breach of contract where staff are sent home and paid statutory sick pay only.  

Prior to introducing any such measures, schools should consider whether it is necessary, whether it will help provide a safe environment (which will largely depend on the effectiveness of the tests), whether testing could be confined to high-risk roles, for example teaching and support staff, or whether there are any alternative measures that could be put in place as an alternative.

Where schools collect data related to testing, they should ensure that they have considered the data protection implications, including identifying a lawful basis and condition for processing the data, conducting a Data Protection Impact Assessment (DPIA) and ensuring that they are comply with the data protection principles.

Of course, where school staff experience symptoms, they should access a test through the usual route or carry out a test using school test kits (provided by the government) where they are unable to access a test elsewhere.

Can schools carry out temperature testing or symptom checking?

Both temperature testing and symptom checking for staff are less intrusive than testing and will be easier for schools to justify. However, they will still need to go through the same process (as above) before introducing these measures and, with up to 80% of covid-positive individuals being asymptomatic or experiencing mild symptoms, will need to consider whether these measures will be effective.

For further information and advice please contact the Employment team or your usual Wilsons contact.

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