Rustom Tata gives legal advice on whether employers can insist employees are vaccinated against Covid.
In this Q&A, Rustom Tata, Chairman and Partner at city law firm DMH Stallard and head of the firm’s employment group, considers some of the practical and legal issues that may arise around employers asking employees to have vaccinations.
Q: Can an employer insist that one of their current staff has a vaccination?
There is no blanket answer. In most cases the employer will need to be able to show a proper reason as to why this is necessary. As it is still unclear to what extent the vaccination reduces the risk of transmission, the potential for infection of co-workers, customers or others with whom the employee may come into contact when they are working does not seem to be addressed simply by the fact of vaccination. In the absence of that clear evidence, the protection gained through the vaccine is much more about protection of the employee themselves in relation to the likely severity of symptoms.
Q: But shouldn’t a responsible employer want their staff to be vaccinated?
Yes, though in high risk settings (healthcare in particular) this is currently more about protection of staff whose work means they come into frequent contact with those who may have the virus, and to reduce the level of absence amongst those staff.
Q: But if my staff contract Covid they are likely to be off sick.
An employer certainly has a legitimate interest in keeping absence rates down (and reducing potential payments of sick pay). While in theory an employer could insist that any enhancement which it applies over SSP will only be available for Covid absences if the staff member has been vaccinated, the difficulty of implementing such a policy makes this unlikely.
Q: But I have heard of at least one business owner stating his staff must have the vaccine in order to work.
There have been one or two well publicised instances of this. Looking at the detail it appears that this is not in the context of employees, but contractors who will not be offered work without a vaccination; there is a subtle difference.
Q: Won’t those ‘employers’ face potential discrimination claims?
Yes, in theory if a rigid rule is applied across the board. While certainly pregnant employees would have protection against such action, in my view it is relatively unlikely that the ‘anti vaxxers’ will have such protection.
Q: We have been asking staff to tell us if they have received a positive test result. Is that still ok?
The key is the purpose for which the information is being requested, and then how that information is recorded and retained. In the early stages of the current pandemic the concerns were around those who were coming into the workplace and might therefore pose a risk of transmitting the disease to others. That remains an issue in some workplaces. However, for those employers whose staff are now largely working remotely this has become less of an issue, although of course there may be instances when staff want to visit the workplace and may again come into contact with others.
Even for those employees who are working remotely there does remain a strong public health argument that responsible employers should try and help to ensure that anyone who has a positive result self-isolates. As a reminder, the handling of information relating to health and any vaccinations must comply with GDPR and Data Protection Act requirements, and the information will be considered sensitive personal data.