Legal

Key questions about the Covid vaccination

4 Mar 2021 By Charlotte Marshall and Emma Vennesson

Emma Vennesson and Charlotte Marshall answer common queries employees have about the vaccine rollout and returning to the workplace

Can my employer ask me if I have had the Covid-19 vaccine?

Your employer can ask if you have had the Covid-19 vaccine. However, there may be data protection implications of doing so since. Holding information on whether or not an employee has had the vaccine is likely to be considered a ‘special category’ under data protection law. This means that the data is sensitive and your employer must put in place additional safeguards to protect it. 

Can my employer request or force me to have the coronavirus vaccine? Is this similar to requesting employees get tested?

Your employer can make it a workplace requirement that staff should be vaccinated, provided that this is reasonable in all the circumstances. There may be some settings, such as healthcare, where a requirement for employees to have the vaccine is reasonable and necessary. However, the majority of employers may find it difficult to justify such a requirement, particularly where other safety measures, such as social distancing and the wearing of face coverings, are available. 

Many employers will be concerned about ensuring the safety of their staff and both testing and vaccination are likely to be important in enabling workplaces to open back up. However, vaccination is a medical procedure, which carries inherent medical risks and may not be suitable for everyone, so there will be different legal considerations and implications to employee testing. 

Is there a health and safety obligation? If an employee refuses to be vaccinated, does this pose an issue for other employees in the office?

Employers do have a legal obligation to ensure the health and safety of their workforce as far as reasonably possible. While requiring that employees have the vaccine may be a means of fulfilling those obligations, such a requirement can only be imposed if it is reasonable in all the circumstances. 

Where the requirement is not reasonable, employers will need to rely on other measures to ensure the safety of employees, such as social distancing and the wearing of face coverings. In any event, however, no vaccine is 100 per cent effective and it is not yet known the extent to which people who have been vaccinated can still spread the virus. The current UK guidance is that these alternative safety measures should continue to apply to everyone, including those who have been vaccinated. 

If vaccinations cannot be made compulsory, what else can employers do?

Employers should provide guidance to employees about the vaccine and encourage them to have it if they are able to. Current UK guidance suggests that employers should support members of staff in getting vaccinated and talk to them about the benefits of vaccination. Additionally, employers will need to continue other safety measures that are in place to protect the workforce, such as social distancing and the wearing of face coverings. 

Are there any discrimination risks around the vaccine?

Some people will not be able to have the vaccine due to certain characteristics that are protected under UK discrimination law (such as pregnancy or disability). If an employee is not able to have the vaccine because of a protected characteristic and their employer treats them less favourably than other employees who have been vaccinated as a result – for example, if the employer disciplines or dismisses them – this could risk a rise in discrimination claims.

What are my rights as an employee if I refuse to get vaccinated? Will I lose my job?

Employees have an implied duty to obey their employer’s reasonable instructions and can potentially be dismissed for failure to follow such instructions. Whether or not an instruction is reasonable will depend on all the relevant circumstances. 

In the majority of cases, it is likely employers will find it difficult to justify requesting employees to be vaccinated as reasonable and therefore dismissing an employee who refuses to comply, could be considered unfair. In those circumstances, employees may have claims for unfair dismissal, provided they meet the applicable length of service requirement. 

Employees may also have other claims, such as for discrimination if they are unable to be vaccinated because of a characteristic that is protected under UK discrimination law and they are treated less favourably because of this.  

Emma Vennesson is counsel and Charlotte Marshall an associate at Faegre Drinker Biddle & Reath LLP 

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