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Common questions from employers navigating Covid-19

By Natasha Smith, Senior Associate


Here Natasha Smith addresses some common questions from employers navigating Covid-19 vaccination status.


The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce workplace risks; this duty gives employers justification for encouraging employees to be vaccinated and accept offers of boosters to protect themselves and everyone else in the workplace.


However, mandatory vaccination may discriminate on the basis of disability, or religious or philosophical belief. The wisest approach for employers is to encourage staff to be vaccinated and publicise the benefits to improve take up of the vaccine and boosters when offered. Engagement by organisations through good communication will help employees make informed decisions.


Below are some commonly asked questions being raised by employers:


Can we ask an employee their vaccination status?
Employers can ask if employees have been vaccinated but should always have a good reason for needing to know this information, for example the safety of other employees. However, it is important to consider the overlap with data protection rules, as this information is sensitive personal health data. For example, if the purpose of gathering data on vaccination status is to allow only vaccinated staff into the workplace, this is unlikely to be considered to be a good enough reason to capture the data.


Can we ask them for proof of vaccination?
If this information is volunteered by an employee. Whilst employers can ask them if they’re happy to provide proof of their vaccination status, they have no obligation to do so and should not be penalised in any way for failing to do so.


Do we need permission to retain vaccination records?
Yes. Medical information that an employee has received a vaccine will constitute special category data, so employers who choose to keep records should do so in accordance with data protection rules. Employers should also consider whether their privacy notice needs to be updated.


Could we enforce home working on somebody that refuses to be vaccinated?
If this is a permanent change to their terms and conditions of employment, then you would need to obtain their consent to vary their contract before making this change, in order to minimise the risk of a breach of contract claim being pursued.


Can employers adjust sick pay for unvaccinated staff?
The pandemic changed Statutory Sick Pay (SSP) rules so that SSP has been payable to staff who have been advised to self-isolate, even if they are not actually ill. The position in relation to company sick pay is less clear and will depend on individual contracts of employment.


Some employers have decided not to pay company sick pay if an unvaccinated employee catches Covid-19. Others are not paying full sick pay to unvaccinated employees who are required to self-isolate.  However, most contracts do not distinguish between reasons for sickness absence so a member of staff who is ill with covid (and whether or not they have been vaccinated) will still be ill and therefore it is arguable they are contractually entitled to receive company sick pay.


However, this area is very much developing and the examples that have been cited in the national press recently are open to challenge by dissatisfied employees and likely to roll on for some time before any definitive decisions are made by the courts.


Other questions that employers should consider include:

• If a vaccinated employee refuses to work with another (openly unvaccinated) employee, what can we do?
• Are we obliged to advise customers that staff members who carry out site visits have not been vaccinated in order to protect our business?
• If multiple clients are adverse to having non-vaccinated individuals on site, and this meant that our staff cannot perform their roles effectively, what options would we have with those staff?


If you would like to discuss any of the above questions further or any other employment matter, please do not hesitate to contact Joseph Oates on email: jmo@cooperburnett.com or Natasha Smith on email: nes@cooperburnett.com or tel: 01892 515022.

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March 14, 2022

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