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What if an employee refuses to have a vaccine?

Ann Swain, CEO - the Association of Professional Staffing Companies

Across the UK over half of the adult population has now been offered a Coronavirus vaccination – a fantastic milestone that has bolstered optimism for many that a return to normal is possible. However, for HR teams and talent acquisition managers, this roll-out creates a new challenge: knowing what can and can’t be asked of existing staff, new hires and on-site visitors in line with the vaccine.

The challenge of course is the need to carefully balance the health and safety (H&S) needs of the workforce with the handling of sensitive personal data. And with Covid-19 being such a new workplace H&S concern, there is still some areas that require greater clarity.

According to global law firm – and APSCo Trusted Partner – Squire Patton Boggs, there are a number of compliance ‘do’s and don’ts’ with the vaccine.

Requesting employees have a vaccine
The question of whether or not employers can insist that their staff have a vaccine is a priority as many businesses begin to plan for a return to the office. However, there is no clear-cut answer to this for some firms.

There is the potential for a company to insist as a matter of law that staff are vaccinated and dismiss individuals for persistent refusal. But this comes with a number of caveats. Whether or not this decision is classed as reasonable depends on the employee’s reasons for refusal and if they are substantial, whether their actions pose a serious health risk to others in the workplace including clients, colleagues and customers, and the nature of their job. This last point is pertinent to sectors where individuals work with the clinically vulnerable so won’t be relevant to every organisation.

If a business’s reason for dismissal is based on the risk to the rest of the workforce the issue becomes more complex and employers shouldn’t take a blanket approach to handling this. Instead, it should be assessed on a case-by-case basis whether or not an individual should be considered for dismissal if they refuse the vaccine. In this instance, the decision should take into careful consideration the arguments of the employee.

Under the Health & Safety at Work Act 1974, employers are required to take reasonably practicable steps to reduce workplace risk, which is likely to include encouraging staff to have the vaccine. However, this is unlikely to extend to requiring all staff to get vaccinated.

Employers can potentially refuse entry to the workplace if a person hasn’t had a vaccine, but if this option is being considered, firms do need to be prepared to justify their decision, including demonstrating that alternative options are being considered. For example, if a worker is refusing the vaccine, could continued remote working be an option or would other guidelines on social distancing be appropriate? Unpaid leave may also be a consideration, though this should, again, be reviewed on a case-by-case basis.

Privacy and data protection
According to Squire Patton Boggs, employers also face a data protection and individual privacy issue where they are asking employers about the Covid vaccine. The nature of this information falls under special category health data, meaning that it is subject to all the appropriate protections against loss and unnecessary disclosure. This is the position regardless of whether or not the person in question has had the vaccine or intends to.

It also means that who this information is shared with internally will need to comply with internal data policies and will need to be stored long enough to be used in any possible proceedings involving the individual where this data is relevant (any legal action against the employer, for example).

Complete transparency is also key. An employer should be communicating to staff how their personal data pertaining to the vaccine will be used and who can access this information. There may also be a need to update existing employee privacy notices as a result and a data protection impact assessment may be required to determine if a record of the information is necessary.

Non-employee on-site concerns
Beyond existing employees, there is also the issue of what a company can reasonably ask of visitors – including those attending a location for an interview. Businesses are able to refuse a third-party access to their offices without a vaccine, which creates a whole new challenge for employers. But this won’t just be a concern where external suppliers are expected to be attending a destination; it will also impact the recruitment process. Where applicants are being asked to attend an in-person interview, any organisations that expect the individual to have had a vaccine are exposed to a number of risks. First and foremost, this could have an impact on the employer brand. If a candidate isn’t pleased that they are being asked for this personal information, there is a chance that they could not only be lost as a potential new recruit, but also publicly complain that discriminatory processes are being implemented (even if there is no legal basis for such a claim).

This also presents a data protection concern as it relates to the handling of special category data of an individual who is not an employee. Businesses can make the decision to deny access to the work premise without a vaccination, but if they do choose this route, they will need to ensure this information is being recorded compliantly and that alternatives are being offered – such as video interviews – where the individual hasn’t had a vaccine.

Keep flexibility in mind
While the above information is correct at the time of writing, it is subject to change – and indeed likely to be adapted given the evolving nature of the pandemic. We anticipate that as the restrictions start to ease, the government will update its Workplace Guidelines that were first issued last year.   In the meantime, though, it is vital that employers don’t act too rashly on vaccine requirements for staff and on-site visitors. A careful balance between keeping these individuals engaged and safe needs to be struck. Making drastic decisions now could impact the longer-term return to the office that we are all hoping lies not too far ahead.

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