Back to the office: from Covid safety to vaccine passports

Karen Holden from A City Law Firm advises on the legal rights around a safe return to work,  with particular reference to the debate about vaccine passports.

A woman sits at her desk with hand sanitiser and face mask in the foreground

 

Following the implementation of a national lockdown in England on 4th January 2021, most businesses were required to close and it was advised that workers must work from home unless this is not reasonably possible.

On 22nd February, Boris Johnson announced a four-step plan to ease the lockdown. The government’s “roadmap out of lockdown” will see restrictions begin to lift against a series of indicative dates, with a minimum of five weeks between each step. The government plans to ease restrictions at the same time across the whole of England, but local intervention may be taken in certain areas where rising infection rates puts the NHS at risk.

At the centre of the government’s plans is the successful roll-out of the Covid-19 vaccination programme, the results of which are under constant review. The end goal is for all social distancing restrictions to be lifted by 21st June. However, before this date, the guidance remains to work from home where possible.

But as workplaces begin to open over the summer months, what steps must we take to make workplaces Covid-19 secure?

This is raising many employment law issues for employers as the guidance on working safely during the Covid-19 pandemic continues to evolve. Examples of this include adjusting hours, flexible working, health and safety obligations, medical testing, contact tracing and vaccine passports.

All employers have a statutory duty to ensure their workplaces comply with health and safety requirements and have a general duty of care toward their staff and anyone who is accessing their business premises. In order to comply with these duties, employers must:

  • Undertake sufficient risk assessments to identify the hazards. This should include a review of different groups of workers, taking into account specific requirements and vulnerable workers, that may require adjusted hours or flexible working.
  • Introduce measures to mitigate the risks that are identified. This does not mean eliminating the risks, but confers a duty to take reasonably practicable steps to mitigate them where possible.

For more information on the steps employers can take, it is suggested that you refer to the relevant sector guide for your sector which is contained in the government’s review on working safely during the coronavirus. Please note this is guidance and not law and must therefore be implemented in accordance with health and safety laws and regulations and any sector specific guidance.

Can my employer ask me to get the jab and might a vaccine passport be required at work?

Companies across the UK are looking at ways to require current and future employees to take the Covid-19 jab. Vaccine passports, which could be used to demonstrate uptake, are also being discussed in the employment sphere. But this raises complex legal and ethical questions.

Justice Secretary Robert Buckland commented that making new staff get vaccinated could, in theory, be possible if it was written into their contracts.

However, the prime minister’s official spokesman stated: “Taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one.”

The Government is yet to adopt a clear position on this topic and it is unclear if and when such a position will be reached. It was acknowledged that it would be “up to businesses” if they wanted workers or customers to hold coronavirus vaccination passports. But ministers expressed clear concerns over coercing people into getting the vaccine, given the legal and ethical questions that follow.

How can uptake of the vaccine be demonstrated?

This is another important question, particularly as requesting highly sensitive medical data is clearly not desirable or practical for either employees or employers.

At present, anyone who has had the jab receives a vaccination card and the details go in their medical records. The UK is among a number of countries considering whether to introduce more formal proof that someone has had the jab and it has been suggested that a passport feature could be added to the existing NHS app. This would enable people to use their phone to prove they have been vaccinated or had a recent negative test.

In January, trials began for a new Covid-19 passport technology by biometrics company iProov and cyber security group Mvine, with funding of £75,000 from Innovate UK, a government agency that funds business and research collaborations.

Are employers likely to implement vaccination terms?

Until further guidance is provided by the Government, we expect employers will proceed with caution before implementing mandatory requirements for vaccine uptake or requesting proof of uptake from employees. The glaring threat of legal claims for discrimination by workers is an unappealing prospect. This includes those who have lost or been refused jobs when they have valid medical reasons for not accepting the vaccine or have sought to evidence rejection of vaccine uptake by seeking to rely on a protected characteristic such as pregnancy, disability or religious beliefs for doing so.

Therefore, in short, the legal position at this point is fairly straightforward. Under current legislation, it is almost certainly going to be unlawful for any employer to require employees to take the vaccine or demonstrate uptake. And since there does not appear to be any Governmental appetite for such far-reaching legislative change, this legal position looks likely to continue.

However, as technological advances make it easier to demonstrate vaccine uptake, and as the conversation regarding vaccine passports increases over the coming months, such innovation and use in different sectors of the economy including retail, travel and hospitality will undoubtedly soften the conversation in respect of their use in the employment sphere.

*Karen Holden is CEO of A City Law Firm.



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