While most employers in the UK have stopped short of making vaccination a condition of continued employment, the near completion of the UK’s vaccination roll-out (particularly among older age groups) combined with relatively high levels of COVID prevalence, means that it is increasingly difficult for employers to avoid vaccination questions entirely.
In this briefing we highlight four areas where questions about vaccination might be relevant for employers who have decided not to make vaccination a condition of continued employment. Whether or not it will be lawful to ask these questions at all, and if so who should be asked, what should be asked and how the answers should be recorded, will vary according to the particular circumstances.
If asking questions about vaccination it is always worth bearing in mind the following:
- While there is clear evidence that vaccination is highly effective against serious illness and hospitalisation, vaccination reduces but does not eliminate the risk of acquiring or transmitting COVID
- Some workers cannot be vaccinated for medical reasons
- Not all younger workers will have yet had the chance to receive two doses of an approved vaccine
- Rates of vaccine hesitancy are higher among some protected groups and among younger people
- As with all health–related questions, more stringent data protection provisions apply than for most other categories of personal data.
Removal of work from home guidance
Since the lifting of most restrictions on 19 July, the requirement to work from home if you can has been lifted, and most employers are in the process of planning at least a partial return to the workplace for those who have been able to work from home during the first 18 months of the pandemic.
Revised guidance makes it clear that employers need to revisit their COVID risk assessments and review which mitigating measures need to be retained as more employees return to work. Throughout the vaccination roll-out the Government has made it clear that vaccination is not a substitute for taking other precautions against spread in the workplace, though there is less emphasis on social distancing than previously.
It follows that in most workplaces checking the vaccination status of staff is not likely to be a mandatory element of a COVID risk assessment. However, a stronger case could be made for workplace checks in specific health and care settings (in advance of vaccination becoming a condition of deployment in care homes from 11 November) or perhaps, as an ad hoc measure, where the workplace is in a location where prevalence is particularly high.
That said, while this is not yet widespread, some employers outside health and care settings are asking workers returning to the workplace to confirm their vaccination status. Provided that there is a clear reason for the request, there has been adequate staff engagement on the issue, and no adverse consequences are visited on those who are not able to confirm that they have been fully vaccinated, any legal risks in asking these questions are likely to be relatively small, subject to compliance with data protection requirements.
Since 19 July, people who have been given both doses of approved UK vaccines have not had to quarantine when arriving in the UK from amber list countries. The same exemption was subsequently extended to people who have received an approved course of vaccinations in the USA or Europe. In addition, while the rules on quarantine are not fully reciprocal, doubly vaccinated UK-based travellers generally face fewer restrictions when travelling abroad than those who have not been vaccinated. Separate exemptions from the quarantine rules remain in place for some cross-border workers.
These changes mean that vaccination status may become a relevant consideration when managing employees whose work requires international travel, unless a specific job-based exemption applies. In most circumstances it is likely to be lawful to ask such workers about their vaccination status: the more difficult issue is likely to be how to manage such staff if they have not been double vaccinated.
Slightly different considerations apply when recruiting new staff. In general, asking health-related questions at interview stage risks infringing the Equality Act if this has an influence on recruitment decisions. There is however an exception where the question is to establish whether an applicant is able to carry out “a function that is intrinsic to the work concerned”. That exception is likely to apply to posts where regular international travel is essential.
The rules about self-isolation changed on 16 August. From that date close contacts of people who have tested positive have not been required to self-isolate for that reason alone, though they are advised to take a PCR test. Employers may wish to take a more cautious view, but there is no longer a legal requirement to exclude such people from the workplace unless they test positive or become symptomatic.
This rule change means that it may be necessary to ask staff about their vaccination status when managing a workplace outbreak, or assessing whether someone who has been “pinged” by the COVID app is able to come into the workplace. As long as the question is targeted at relevant staff, such questions are likely to be lawful, subject to compliance with data protection rules about health-related data.
Working in care homes
As from 11 November, individuals cannot work in care homes in England unless they have been doubly vaccinated or have a medical exemption. These new rules are therefore an issue not only for employers with staff based at care homes, but also for organisations supplying staff who need to enter care homes to provide ancillary services. This extends to NHS and other organisations providing medical care in care homes, businesses providing any other services (such as maintenance or personal services to residents), and even CQC inspectors. The Government is now consulting (until 22 October) about extending similar rules (for both COVID and flu vaccinations) to other health and care settings.
Employers whose staff work in or visit care homes will already be planning the necessary steps to comply with these new requirements. They will clearly need to ask about their vaccination status, but before doing so they will need to consult about how they plan to ensure compliance with the new requirements, and in particular the implications for those without a medical exemption who are unable or unwilling to demonstrate that they have been fully vaccinated.