What does the Scottish COVID-19 passport scheme mean for employers?

The Scottish COVID-19 passport scheme was introduced on 1 October 2021 and made legally enforceable on 18 October 2021. People in Scotland must now show proof of their COVID-19 vaccination status (or from 6 December, proof of a negative COVID-19 lateral flow or PCR test) when attending certain larger scale events and late-night premises. With in-person events increasing and the festive period on the horizon, we discuss how the scheme works and the practical considerations for employers who employ staff in Scotland.

How does the scheme work?

Individuals in Scotland must be able to show proof that they (i) have been fully vaccinated with a UK approved vaccine (and that 14 days have passed since the final dose for the vaccine to take effect), or (ii) have a record of receiving a negative lateral flow or PCR test (taken in the previous 24 hours), or (iii) are exempt from the scheme (see below), to be able to attend certain events or enter certain premises, such as:

'Late night premises', which are any premises which serve alcohol between midnight and 5am, with a designated dancing space and live or recorded music for dancing;
Events taking place wholly or mainly indoors which will be attended by 500 or more people simultaneously and where not all attendees will be seated;
Events taking place wholly or mainly outdoors which will be attended by 4,000 or more people where not all attendees will be seated, or;
Events which will be attended by more than 10,000 people simultaneously.

There are certain exemptions contained in the rules for specific types of events.

Where vaccine certification is required, venues and event organisers are legally required to have a reasonable checking system in place to ensure only those who are permitted to be on the premises can attend the event. This includes asking for vaccine certificates, records of a negative COVID-19 test, or proof of exemption from the scheme to be presented earlier in the evening, where for example a late-night premises is open before midnight but continues to be open beyond midnight.

More details on the scheme can be found here.

Who is exempt from the scheme?

Certain people are exempt from the scheme, including:

under 18s
individuals who for medical reasons are unable (i) to be fully vaccinated and (ii) from 6 December 2021 to take a test (lateral flow or PCR) (although they will need to provide proof of their exemption to attend an event)
individuals responsible for the premises where the event is taking place, or those who are: "on the premises to provide a service or activity on behalf of the person responsible for the premises (whether as an employee, volunteer, or otherwise)"
participants in vaccine trials
emergency services responders and public authority regulators carrying out their work

More detailed information on exemptions can be found here.

Which events or venues are exempt from the scheme?

Certain events are exempt from the scheme, for example, there are specific exemptions for certain business conferences in limited circumstances. For a full list of exempt events, click here.

Public services or other settings such as retail, public transport, health services and education aren't currently included in the scheme.

What if a member of staff isn’t fully vaccinated?

Currently, individuals in Scotland will not be able to attend a venue or event that is covered by the scheme unless they are able to show proof they have (i) been fully vaccinated, or (ii) have a record of receiving a negative lateral flow or PCR test (taken in the previous 24 hours) or (iii) are exempt (e.g. they are working or providing a service for the venue, they are medically exempt, or another exemption applies - see above list).

How long will the scheme be in place?

Currently guidance published by the Scottish Government states that: "the scheme will be reviewed at regular intervals in line with the current process for reviewing COVID regulations every three weeks."

Is there a COVID passport scheme in England or Wales?

In England individuals can get an NHS COVID pass to show their COVID-19 vaccination status or test results. As part of the UK Government's 'Plan B' strategy, they have introduced a vaccine passport scheme, which has been in operation from 6am on Wednesday 15 December 2021. Further details on the scheme can be found here.

In Wales, in order to attend large events and venues, individuals need to show a COVID Pass to prove they have either been fully vaccinated or have tested negative for COVID-19 (lateral flow test taken 48 hours before event or attending venue). More information can be found here. The use of COVID passes was extended to theatres, cinemas and concert halls in Wales on 15 November 2021. See more here.

Practical considerations for employers

Employers who are planning social events, business development events or other events which will be attended by employees, clients or third parties will need to become familiar with the vaccine passport restrictions.

The existence of vaccine passports does mean that some employees may be excluded from certain work-related social and business activities. However, from 6 December 2021 in Scotland, the ability to show proof of a negative COVID-19 lateral flow or PCR test should enable more people to attend events covered by the scheme. Employers should continue to be mindful when planning events, particularly work-related social events and consider which option might be most inclusive for all staff, as some people may still not feel comfortable socialising in large groups.

The use of vaccine passports is likely to result in employers knowing more about employee's vaccination status than would otherwise have been the case. As an individual's vaccination status is special category data for GDPR purposes, employers need to consider their data protection obligations to employees. For example, employers should consider whether they: (i) can justify processing the data (ii) need to carry out a data protection impact assessment (iii) should update their privacy notices or issue guidance about such data to staff. Please contact us for specific advice.

It may also be more likely that employees will find out about their colleagues' vaccination status if there are events which some colleagues cannot attend. Whilst this information may be shared freely in conversation, it is personal health information so should be handled sensitively and all members of staff should be respectful of their colleagues' vaccination status. Again, employers may want to consider issuing guidance to staff on this.

For more information on any of the issues discussed in this blog, please contact a member of the Brodies Employment and Immigration team.

Workbox by Brodies subscribers can also access helpful FAQs on vaccination issues, as well as other COVID-19 related topics here. Workbox also has a COVID-19 office policy which covers vaccination.