Can employers ask employees if they have had a coronavirus (COVID-19) vaccination?
An employer that intends to ask employees if they have been vaccinated against coronavirus (COVID-19) must be clear about its reasons for doing so. To comply with its data protection obligations, it must ensure that it has a legal basis for processing such information and that it complies with the conditions for processing special category data (relating to employees’ health) under the UK GDPR.
The Information Commissioner’s Office has published guidance for organisations on when collecting vaccination data can be justified. Depending on its reasons for asking about vaccination status, an employer may be able to rely on its legitimate interests and compliance with employment rights and obligations as the basis for processing such data.
It is likely to be easier to justify collecting such information in certain workplaces, for example in a health or care setting where coronavirus presents a specific risk.
Employers should consider carrying out a data protection impact assessment before collecting vaccination data.
If it does collect this personal data, the employer must ensure that it is kept securely and that it is shared only with the specific people who need to access it. It must be kept for no longer than necessary. An employer could consider keeping anonymised records, if its aim is to monitor levels of vaccination across the workforce, rather than recording whether specified individuals have been vaccinated.
The employer must provide employees with information about how and why their vaccination data is being processed. This could be an update to an existing privacy notice or could be provided as a separate document.
Employers should be aware that an attempt to impose a mandatory vaccination policy would risk a number of legal claims and employee relations issues.
Can an employer require employees to have a coronavirus (COVID-19) vaccination?
Employers have a duty to ensure, as far as reasonably practicable, the health and safety at work of their employees. Asking employees to agree to a vaccination against coronavirus (COVID-19) is likely to be a reasonable step to take to reduce the risk to employees’ health. Vaccinations are not available for employers to buy privately to provide for their employees, but employers can encourage employees to take up the vaccine when they are eligible under the national programme.
However, if employees do not agree to a vaccine, employers are limited in what they can do, beyond encouraging take up. An employer could consider informing employees that refusing a vaccination could lead to disciplinary action. There is a risk that such a policy could cause employee relations problems, as employees may feel strongly that this should be a personal decision. It would also raise a number of legal issues, with a particular risk of complaints relating to discrimination on grounds of religion or belief, disability and age; constructive dismissal; and human rights issues. Employers should be aware that employees may have a medical reason for not getting the vaccination.
It is currently unlikely that most employers would be able to use health and safety grounds to justify taking disciplinary action against an employee for refusing a vaccine. This may change over time, when more is known about the effects of the vaccination programme, but there is still likely to be a very high threshold to meet to justify such a policy. It may be possible in exceptionally high-risk circumstances, where alternative measures have been taken into consideration and where the policy accounts for the particular circumstances of individual employees.
The Government intends to make it a requirement for anyone working indoors in a care home to have had two doses of the vaccine (unless they have a medical exemption). This requirement is due to apply from October 2021. Where being vaccinated is a legal requirement for carrying out the work, the employer will be in a strong position to be able to justify taking action against an employee who refuses vaccination.
Can employers make having had a coronavirus (COVID-19) vaccination a condition of employment for new recruits?
Unless there are compelling reasons for requiring employees to be vaccinated, as identified by a risk assessment relating to the particular work, employers should avoid making vaccination a compulsory requirement for new recruits. A “no jab, no job” policy could give rise to unlawful discrimination, for example on grounds of disability or age.
Many of the same issues apply to a mandatory vaccination policy for new recruits as for existing employees. In terms of potential legal claims, requiring new employees to have had a vaccination would be less risky than imposing such a requirement on existing employees, as job candidates will not be able to claim unfair dismissal and the employer will not need to obtain their agreement to a contractual change. However, job candidates can bring discrimination claims (provided that they have a relevant protected characteristic).
Employers should consider encouraging new recruits to take up a vaccination, when available, if they have not already done so. But they should be prepared to take individual circumstances into account, rather than applying a blanket “no jab, no job” policy.
Can an employer require employees to be tested for coronavirus (COVID-19)?
All individuals with symptoms of coronavirus (COVID-19) are eligible for a test provided by the NHS, to show if they currently have the virus. Some employers may consider providing testing for their own employees, including where they do not currently have symptoms, to prevent transmission in the workplace. A government scheme allows employers registered in England to order free lateral flow tests for employees.
Information about employees’ health, including whether or not they have tested positive for coronavirus, or have particular symptoms, is special category data under the General Data Protection Regulation (2016/679 EU) (GDPR). Employers considering testing employees for coronavirus should do so only if they can comply with their GDPR obligations relating to the processing of such data.
The Information Commissioner’s Office (ICO) has published guidance for employers on workplace testing. The guidance states that employers are likely to be able to rely on their health and safety duties as a ground for processing special category data in these circumstances, but that the employer should carry out a data protection impact assessment before carrying out testing and should process employees’ health data only if this is necessary and proportionate. They should collect the minimum data necessary and ensure that this is kept secure. They must provide employees with information, including on what health data will be collected, what it will be used for, who (if anyone) it will be shared with and for how long it will be kept.
If an employee does not agree to take a test, they cannot be forced to do so. In certain circumstances, it may be open to employers to take disciplinary action against an employee who refuses a test, but this would depend on factors such as the nature of the employee’s work and any evidence on the necessity of testing in the particular environment.
The Government has published guidance for employers and third-party healthcare providers on coronavirus testing.
Can an employer inform its staff if a colleague has tested positive for coronavirus (COVID-19)?
It may be appropriate for an employer to inform employees if a colleague has tested positive for coronavirus (COVID-19), so that steps can be taken to prevent further transmission. However, the employer must keep in mind its data protection obligations in relation to the employee and disclose no more information than is necessary. The employer may be able to provide information that allows staff to know if they have been in recent close contact with the employee who has tested positive, without identifying the individual involved.
In its guidance for employers on workplace testing, the Information Commissioner’s Office states that employers should keep their staff informed about potential or confirmed cases among colleagues, but that they should “avoid naming individuals if possible”.
If an employee is advised to self-isolate to avoid the risk of spreading coronavirus, are they entitled to sick pay?
Employees who are staying at home in accordance with government advice or advice from the NHS test and trace service, are entitled to statutory sick pay (SSP), even if they are not ill.
Current government guidance is that anyone who has a high temperature, a new continuous cough and/or a loss of, or change in, their normal sense of taste or smell should stay at home (i.e. self-isolate) for at least 10 days from the onset of symptoms. If they live with others, everyone in the household should stay at home for 10 days, even if they have no symptoms. Someone without symptoms who has tested positive for coronavirus (COVID-19), must self-isolate for at least 10 days from the date of the test.
People may also be instructed by the NHS test and trace service to self-isolate if they have had close recent contact with someone who has coronavirus (COVID-19).
Employees who are unable to work because they are “shielding” due to being clinically extremely vulnerable from coronavirus because of certain underlying health conditions are also entitled to SSP. Entitlement to SSP on this ground ends when the employee is notified that they are no longer advised to shield. The shielding advice has ended in England, with effect from 1 April 2021.
People who are required to self-isolate after travelling abroad are not entitled to SSP, unless they are ill.
What medical evidence can an employer request from employees who are absent with coronavirus symptoms, when government advice is not to attend a GP?
Current government guidance is that, to prevent the spread of coronavirus (COVID-19), individuals with symptoms should stay at home and arrange to have a test, but that they should not go to see their GP.
Most sickness absence policies allow for employees to self-certify absences of up to seven days. Where an employee who is absent for more than seven days advises that they have coronavirus symptoms, the employer will need to make an exception to its normal requirement for medical evidence from the employee’s GP. Nevertheless, the employer should take all reasonable steps to verify the sickness absence. This could include requiring the employee to make regular telephone contact, and requiring the employee to explain what medical advice they have sought and followed.
Special measures relating to evidence to support absence are in place during the coronavirus outbreak. If an employer requires evidence, employees who are staying at home because they have symptoms of coronavirus can get an isolation note from NHS 111 online. Those who are staying at home on government advice because they share a household with someone that has symptoms can also get an isolation note if they are unable to work from home. If an employee has been advised to self-isolate by the NHS test and trace service, the service will provide them with a notification that they can present as evidence to their employer.
For the purposes of determining eligibility for statutory sick pay, employers are able to set their own rules on what evidence they reasonably require of employees’ illness. Legislation does not require that the evidence is in the form of a fit note.
Should a policy triggering disciplinary action after a certain amount of absence be suspended for employees with coronavirus symptoms?
Given the nature of the coronavirus (COVID-19) outbreak, it may be sensible for employers to reconsider their disciplinary policy in relation to sickness absence where employees are sick with symptoms suggesting a risk of coronavirus. If employees are concerned about disciplinary action, they may attend work when unwell or when they should be self-isolating.
To avoid an increased risk of coronavirus infections within the workforce, employers may wish to advise employees that absence due to coronavirus symptoms or self-isolation will not be taken into account when determining whether or not to take disciplinary action. They should make clear that this is a temporary measure and update employees when they revert to the normal policy.
Do employers have a duty to take special measures to protect those employees who are most at risk if they are exposed to coronavirus?
Yes, employers must carry out a risk assessment for all employees, taking into account factors that make some people particularly vulnerable from coronavirus (COVID-19), and take steps to protect their health and safety.
Individuals at the highest risk of serious illness from coronavirus will previously have received a letter from the NHS advising them to “shield”. The government guidance refers to this group of people as “clinically extremely vulnerable“. If an employee in this group cannot work from home, their employer could consider furloughing them and making a claim for them under the Coronavirus Job Retention Scheme.
There is evidence that other groups have a disproportionate risk from coronavirus, including people from some black, Asian and minority ethnic groups and people with a high body mass index.
Employees who are at high risk because of an underlying health condition (whether or not they fall into the clinically extremely vulnerable group) are likely to be protected by the disability provisions of the Equality Act 2010. Where the Act applies, employers are under a duty to make reasonable adjustments, which may entail taking special measures to protect disabled staff, such as adjusting the role to allow them to work from home. Employers should consider such measures for all employees who have an increased risk from coronavirus, whether or not they are covered by the Equality Act 2010.
Employers must also ensure that they comply with their health and safety duties in respect of pregnant employees.
Is there any duty on employers to close their workplace if a risk of contact with coronavirus is identified?
Employers are not required to close their workplace as a matter of course if someone suspected to have coronavirus (COVID-19) has been to the premises. The Government provides guidance on cleaning in non-healthcare settings, which employers should follow if an employee or visitor has coronavirus symptoms or has tested positive for coronavirus.
If an employee has coronavirus symptoms while at work, the employer should instruct them to go home immediately and follow the government guidance on self-isolation and testing