May 27, 2021
As businesses begin to welcome their employees back to the workplace, a survey of over 1,000 employers by the British Chamber of Commerce has found that 22% of employers are planning to require, or considering requiring, their staff to have had the COVID-19 vaccine before they attend work.
The COVID-19 vaccination is not compulsory, so employers cannot mandate that their employees receive it. However, there are questions over whether employers can legally prevent staff from returning to the workplace if they have not been vaccinated.
In some settings (such as with roles involving caring for vulnerable people, or which require international travel) it may be a reasonable requirement for staff to be asked to provide proof of vaccination as a condition of their role. The UK Government is currently considering making this a condition for work for staff in older adult care homes.
However, concerns have been raised about discrimination against those who choose not to have the vaccine for reasons such as disability or religious beliefs. There are also potential issues in relation to the right to privacy, data protection and constructive unfair dismissal.
Employers should usually therefore not use a requirement for proof of vaccination to restrict who can come in to the workplace, as imposing such a workplace policy may give rise to disputes or even Employment Tribunal claims.
Instead of focusing on the vaccine status of employees, employers in most sectors should concentrate on other methods of mitigating the spread of COVID-19 such as a workplace rota, staggered start and finish times and social distancing measures alongside encouraging uptake of the vaccine.
However, employers may still ask that employees let them know whether or not they have received the vaccine. This knowledge can be used to give employers the confidence to instigate the return to the office and may feed into their COVID-19 risk assessments.
If asking employees to disclose their vaccine status, employers should make it clear why they are asking for this information and if the intention is to store it, employees should be made explicitly aware and their consent sought. If storing such data, the GDPR principles for special category data should be observed.
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