Returning to the workplace: should we have a COVID-19 vaccination and/or testing policy in place?

As more employees are being asked to return to the office, should employers consider requiring employees to be vaccinated and/or tested for COVID-19 before entering the workplace?

Background

Unlike in some other countries, the government has not legislated to make COVID-19 vaccination compulsory, other than for those working or volunteering in a care home in England. 

While it had been planned that NHS staff and other health care workers in England would need to be fully vaccinated by April 2022, the government announced last week that it was no longer 'proportionate' to require vaccination, including for care home staff who do currently require to be vaccinated. The Government are currently consulting on revoking the regulations.

Against that background, the decision of whether to require employees to be vaccinated and/or tested for COVID-19 before entering the workplace is a decision for each individual employer. It should be based on a risk assessment, taking account of the relevant sector and the nature of work.

Can we ask employees to share details about their vaccination status?

Yes, potentially, but you would be collecting special category health data so there are data protection issues to consider. Read our blog here.

We want to make vaccination compulsory – what do we need to do?

If you wish to introduce mandatory vaccination, you should be able to explain why vaccination will reduce the level of risk, when compared against other mitigation measures (such as face masks, accessible hand sanitiser or social distancing) that you could – or have already – put in place.

If mandatory vaccination can be justified – with reference to your risk assessment – you should then consider the exemptions that you will have in place, in order to avoid the risk of your policy being considered discriminatory. In particular, you should recognise that some of your employees will be clinically unable to have the vaccine. Others may have concerns related to protected characteristics, and they may – as a result - be entitled to protection from discrimination under the Equality Act 2010. Read more about the discrimination risks of a mandatory vaccination policy here.

In all cases, it will be essential to have a process in place that makes it possible for hesitant employees to discuss their concerns (whether that is with HR or their own line manager). This will provide scope to explain your rationale for the policy and share impartial, scientific information about vaccination. All concerns should be treated sympathetically, and you should encourage an open dialogue.

Can we require employees to take lateral flow tests?

You may want employees to take a lateral flow test before attending the office, if following your risk assessment, you identify it as a reasonable measure to reduce the spread of COVID-19. This might be for all employees, or only those who are not fully vaccinated.

The government no longer provides free workplace lateral flow tests for employers. You could choose to fund the cost of test kits privately, or encourage staff to order their own free lateral flow test kits. Government guidance has been published for organisations setting up on-site workplace testing programmes.

In contrast to objections to vaccination, it is unlikely that an employee would be able to claim that blanket mandatory testing would be discriminatory. However, if you only required employees who had not been vaccinated to test then this could potentially amount to less favourable treatment of those unvaccinated because of a protected characteristic – though it may well be justifiable on health and safety grounds.

What are the data protection implications of requiring employees to take lateral flow tests?

If you are conducting a visual check by looking at a test result on an employee's device or hard copy, or only seeking verbal confirmation and not recording this information, you will not be "processing" data for data protection purposes. If, however, you are asking an employee to send you a photograph of a negative test result or upload evidence to an internal system, or are recording information, then your data obligations will be triggered and you will need to carry out an impact assessment. ICO guidance on testing is available here.

What can we do if employees refuse to be vaccinated / tested?

If an employee refuses to be vaccinated / take a test, you should explore the reason for this and re-iterate the reasons for and benefits of the vaccine / testing. Medical objections might have to be referred to HR/occupational health; and there may be additional considerations for those with disabilities.

If the refusal is unreasonable and requiring vaccination / testing is clearly justified, it may be possible to discipline the employee on the basis that they have failed to follow a reasonable management instruction intended to protect health and safety. Whether doing so is fair will depend on all the circumstances, including the sector; the nature of the workplace; the employer's reasons for insisting on vaccination / testing and how well they were communicated; the employee's reasons for refusing; and whether there were any alternatives.

Do we need to have a policy?

If you are going to make vaccination or testing mandatory, then you should issue a staff communication setting out, for example, your requirements and the rationale for them; your other health and safety control measures; what will happen to employees' data; and a process for dealing with concerns and any exemptions. This might be a stand-alone policy or form part of your COVID-19 office policy.

Even if you are not introducing a mandatory requirement to be vaccinated, a policy can be a useful way to communicate information about the efficacy of the vaccine (with links to reliable sources) and set out your position on time off for appointments.

Do we need to carry out any consultation?

Consultation is required in relation to the introduction of any measures which may substantially affect employees' health and safety at work. If you plan to implement a compulsory testing or vaccination policy, consultation may be required with union appointed health and safety representatives, elected employee representatives, the employees themselves, or with a combination of these, depending on the circumstances.

Further information

FAQs on COVID-19 in the workplace, and our template COVID-19 office working policy, can be found on the coronavirus pages of our award-winning HR and employment law site, Workbox by Brodies.

For more information on any of the above, or for assistance with drafting staff communications/policies or carrying out an impact assessment, please contact a member of the employment and immigration team.