Can you ask your staff whether they’ve been vaccinated? Can you ask staff to take lateral flow tests?

With more people returning to workplaces, here are some of the questions we are being asked by employer clients at the moment:

Can we ask staff whether they’ve been vaccinated?

Potentially yes, particularly if doing so is necessary as part of your ongoing risk assessment for the workplace. You should, however, be aware that data about health (such as vaccination status) is a special category of data under data protection laws so there are some data protection issues to consider and you should comply with any privacy notices or data protection policies that you have. You should also respect the individual’s privacy and keep their vaccination status confidential to those who need to know for risk assessment purposes.

Can we force staff to get the vaccine?

The Welsh and UK Governments have not made vaccinations compulsory (except for those working in English care homes). As such, the decision to force staff to get the vaccine is a decision for an individual employer. However, if an employer wants to make the vaccine compulsory for its staff, it will need to show why such a policy is needed, compared to other measures such as social distancing and mask wearing. The employer would also need to consider the potential discrimination risks of making vaccination compulsory, e.g. where some individuals’ medical conditions mean they can’t get vaccinated.

So what’s the best way to approach the vaccine?

Communication and encouragement will be the best and least risky approach to take. An employer may adopt a policy of simply encouraging vaccination, e.g. by signposting staff to trusted information and sources. A vaccine policy can be an effective way of communicating this.

What if an employee is refusing to get vaccinated?

Communication is the first step, and you should try to understand the reason for the refusal first. If, however, you feel the employee doesn’t have a good reason for refusing the vaccine and they are being unreasonable, it may be possible to take disciplinary action (potentially up to dismissal) against the employee, depending on the circumstances.

Can an employee be required to take lateral flow tests before attending the workplace?

Potentially yes, if you believe that is a reasonable measure to take in line with your risk assessment. If you go down this route however, the best approach would be to apply this consistently across all staff, rather than single out non-vaccinated staff only for testing (which could lead to further discrimination arguments). Given that the Government are scaling back LFT’s, the employer would potentially need to fund this themselves, which may lead some employers to consider that their resources would be better spent on social distancing measures.

If you need any legal advice about any of the questions above, or anything else, please get in touch with a member of our employment team on 029 2082 9117 or [email protected] for an initial free, no obligation chat.