Employers guidance - legal implications regarding workforce vaccinations


1st February 2021

Amy Gordon, Solicitor in Lindsays’ Employment team discusses some of the queries that employers may have about their staff and vaccinations as well as the impact that the vaccination will have on risk assessment planning over the coming months.

The rollout of Covid-19 vaccines started in early December 2020. In Scotland, the first groups receiving the vaccine is vaccinators, residents in care homes for older adults, their carers and other frontline healthcare workers. The vaccine is delivered in two doses.

The vaccine is not currently (Jan 2021) accompanied by any changes to the Government advice on measures and restrictions to limit the spread of the virus. Up-to-date advice from the Scottish Government can be accessed here.

Some of the employment law queries that employers may have as the vaccine is rolled out amongst the population include:

Can I require my staff to get the vaccine?

This is unlikely to be an option for employers until later in 2021 and once the ‘priority’ groups identified by the government have been vaccinated. When the vaccine is more widely available, employers should approach this very sensitively.

Vaccination may not be an option for all staff due to health complications, pregnancy or moral objections which will or may amount to protected characteristics under the Equality Act 2010. Certain categories of individuals may also find it more difficult to satisfy such a requirement, such as younger employees not part of the ‘priority’ group identified by the Government.

Therefore, any requirement that staff are vaccinated should be sensitive to permitted exceptions to minimise risk of discrimination claims.

We recommend that any employers seeking to introduce such a requirement take advice before proceeding.

Can I request that my staff tell me if they have had the vaccine?

In addition to sensitivities surrounding those unable or unwilling to receive the vaccine, employers should consider data protection implications of asking staff to disclose information about their health, which amounts to ‘special category data’ ie. personal data that needs more protection because it is sensitive.

Under the General Data Protection Regulation (GDPR) when processing ‘special category data’ employers should identify both a lawful basis for processing and a separate condition for processing special category data. For example, employers may rely on

(i) meeting their legitimate interests, and

(ii) that the processing is necessary to exercise obligations related to employment such as to ensure the health and safety of all staff. 

Care is needed in assessing legal basis and we recommend employers review ICO guidance, take legal advice if required, keep a record of the grounds for processing they have identified, discuss with staff and update Employee Privacy notices if they do not cover the proposed processing.

What evidence can I ask for from staff?

Unlike in England, recipients of the vaccine in Scotland will not receive a vaccination card to show they have been vaccinated. Current reports are that recipients will receive a leaflet at the time of the first vaccine containing a reminder of when the second dose is due.

Vaccination information will be held on individual’s medical records. If employers consider it necessary to obtain evidence in this way, there is a special procedure for seeking employee consent that must be followed under the Access to Medical Reports Act 1988.

We recommend employers seek advice on particular facts and circumstances.

What impact will a vaccine have on our health & safety measures?

The following should be read in light of workplace restrictions in force, depending on geographical location. 

As staff are vaccinated, employers should keep their assessment of risk in the workplace up to date, taking account of any members of the workforce who have not (or cannot) receive the vaccine. A template risk assessment is available from the Health & Safety Executive (HSE) here and makes suggestions on matters specific to Covid-19 which employers should consider. However, it should be noted that is does not yet contain reference to the Covid-19 vaccine.

For the time being and until the vaccine is rolled out more widely, employers may wish to be conservative about the impact of the vaccination on existing health & safety measures and continue to follow government guidance on workplace safety, available here

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