Vaccinations and testing in the workplace

7 December 2020

The country has seen light at the end of the tunnel with the approval last week of a vaccine, 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 employers be able to require that all staff are vaccinated?
In most sectors, 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 in the healthcare sector who must ensure their staff do not pose a risk to patients, they may be able to make vaccination a requirement of employment but only at the point that it is available to staff. 

Can employers ask for evidence that an employee has been vaccinated?
It is unclear at this stage whether employers will be able to justify collecting this information as this will depend on whether the vaccine will affect the covid-secure practices that employers have 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. Employers should, of course, be mindful of complying with data protection legislation whenever they collect new categories of data. 

Can employers 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 employers may be able to buy them for their staff in future, as some companies currently do with flu vaccinations. Employers who do not have a specific regulatory obligation to protect third parties from medical issues 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 employers introduce testing for all staff?
Yes, employers could offer voluntary testing for staff but it would be difficult for employers to justify mandatory testing. There is a risk that employers 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. There is also the risk of discrimination for those with a disability or specific religious/philosophical belief.

Prior to introducing any such measures, employers 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 or whether there are any alternative measures that could be put in place as an alternative. 

Where employers are collecting 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 complying with the data protection principles. 

Can employers carry out temperature testing or symptom checking?
Both temperature testing and symptom checking are less intrusive than using rapid tests and will be easier for employers to justify. However, employers 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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