By Christopher Hitchins, employment partner at Katten Muchin Rosenman (UK) LLP
The COVID-19 pandemic has decimated businesses around the world. In the UK, we have entered a new stage by re-opening the economy and learning to live with the threat the virus continues to pose. So-called ‘vaccine passports’ have made front page headlines as being touted as the potential tool to save us from further lockdowns and restrictions. Whether you are for, or against these, imposing them (or not) on employees will no doubt raise a raft of legal issues and impact your business in myriad of ways.
What could a vaccine passport look like? It may take the form of a national body (such as the NHS) certification that shows an individual has received two jabs, or evidence that they have tested negative within 72 hours. It could also show that the individual has had COVID-19 recently and that they have recovered from it. The theory behind these is that economies can open back up if there is some degree of certainty that those who are having to mix in close quarters, such as at work, do not carry the virus.
In the UK, the vaccine has been rolled out in a structured way according to vulnerability, typified by specific medical conditions, status as a healthcare worker and age. As a result, there will soon come a point where all adults in the UK (those over the age of 18) have been offered at least one dose of the vaccine. Any failure to take up the offer of a vaccine will therefore largely either be due to a medical condition, pregnancy, religious belief, or personal preference.
In the workplace, asking potential and current employees for information about their vaccination status presents a number of potential issues. If employees are treated differently based on their vaccination status, there is potential that unvaccinated employees could be discriminated against because of a disability, their religion or beliefs, race and/or age (while the vaccine is still being rolled out) or on the grounds of pregnancy.
In addition, companies will need to comply with data protection legislation if they keep a record of employees’ vaccination status, which is a special category of personal data under the GDPR. According to the UK data protection regulator (the ICO), the reason for recording your employees’ vaccination status must be clear and compelling. If you have no specified use for this information and are recording it on a ‘just in case’ basis, or if the employer can achieve their goal without collecting this data, they are unlikely to be able to justify collecting it.
If employers do decide to request information about their employees’ vaccine status, they would need to think carefully about what steps they would take if they do learn that an individual has not been vaccinated. Exclusion from the workplace and additional testing requirements could, again, lead to discrimination claims. Whilst the UK government is looking at making vaccination compulsory in a care home and healthcare setting, it is unlikely that this will be the case for most office-based industries. Therefore, compulsory vaccination will not be available to many employers.
As we have seen from data recently published by the UK Government, the vaccine does not stop individuals from getting COVID-19, it lessens the effects of the virus and reduces the rate of infection. With that in mind, double vaccination is no guarantee that an individual does not have COVID-19 and so they could still transmit it. This can put employers in quite a precarious position. If, for example, an employer has one staff member who is highly vulnerable and one that refuses the vaccine for whatever reason, how do they choose who to bring back to the office? Ultimately, the risks associated with treating people differently because of their vaccine status might mean that any “vaccine passport” isn’t only available to those who have had two doses of the vaccine, but also those who can prove that they are negative or who have had COVID-19 and can prove that they have recovered. Perhaps such a certification would be a compromise, but a compromise with its own complications no doubt?