To vaccinate, or not to vaccinate.

Lucy Densham Brown provides insight to some of the questions received by our Employment team with expectations to return to work and the rights of employees and employers. See the article (pages 34-35) and much more in the third edition of The South East Independent Spring issue

Many of us have had to get used to working from home full time over the last year. Implementation of the vaccine has changed that picture; as the world opens up again, there is an expectation that employees will start returning to offices in the coming months. With that has come a lot of questions about whether employers can demand employees get the vaccine. So what are employee and employers rights?

Can an employer make the COVID vaccine compulsory?

An employer cannot force an existing employee to be vaccinated if they do not want to be. However, if the vaccine is considered necessary for the job, e.g. for travel or if the work is with vulnerable people, and the employer can show that the risk of infection to others outweighs the restriction of the employee’s right to freedom of choice, then the employer may be justified in taking action.

Can an employer stop employees who aren’t vaccinated from coming into the office?

This might be possible for employers to do. There may be health and safety risks to allowing unvaccinated employees into the office. Employers should carry out a risk assessment to determine the level of risk and then respond accordingly. However, employers should also be aware of any potential discrimination issues that may arise with refusing entry to those who have not been vaccinated.

We recommend an open conversation between employer and employee about why they aren’t vaccinated and the risks, to come to a solution together that makes both parties happy. The appropriate response may be to enable the employee to work from home.

Can an employer ask for proof of vaccination?

Medical information is special category data and as such there are data protection implications of requiring employees to provide proof of vaccination and retaining this data. Such a policy may also be indirectly discriminatory against those who cannot have the vaccine. Employers may be able to request open disclosure of the proof of vaccination without making it an obligatory requirement, and abiding with the relevant privacy laws regarding the information.

Can an employer make vaccination a condition of future employment?

Employers may lawfully be able to make it a condition of future employment for new employees to prove they have had the vaccine. This will be ok, as long as they don’t discriminate against candidates who are unable to have the vaccine because of a disability or pregnancy.

Do offices still have to social distance if employees have been vaccinated?

The government guidance is still that offices employ the required safety precautions (hands, face, space) regardless of the vaccine status of the employees. As the majority of working age people are not yet vaccinated, it is likely that this guidance will remain in place for the foreseeable future.

The answers to these questions will vary for individuals specific circumstances. If you’re unsure about your position as employee or employer, we’re here to offer some tailored advice specific to you.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP

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