As stories surface of business owners stating that staff must have the Covid-19 vaccine in order to work, Rustom Tata of city law firm DMH Stallard considers the practical and legal issues. 

Much is being made of the possibility of employers requiring staff to have received a vaccination against Covid-19. Here are the answers to some of the key questions that might occur to employers considering how to deal with what might become as contentious issue.    

Can an employer insist that a current member of staff has a vaccination? 

There is no blanket answer. In most cases the employer will need to be able to show a proper reason as to why this is necessary. As it is still unclear to what extent the vaccination reduces the risk of transmission, the potential for infection of co-workers, customers or others with whom the employee may come into contact when they are working, does not seem to be addressed simply by the fact of vaccination. In the absence of that clear evidence, the protection gained through the vaccine is much more about protection of the employee themselves in relation to the likely severity of symptoms.  

Shouldn’t a responsible employer want their staff to be vaccinated? 

Yes, though in high risk settings (healthcare in particular) this is currently more about protection of staff whose work means they come into frequent contact with those who may have the virus, and to reduce the level of absence amongst those staff. 

If my staff contract Covid they are likely to be off sick. 

An employer certainly has a legitimate interest in keeping absence rates down (and reducing potential payments of sick pay). While in theory an employer could insist that any enhancement which it applies over Statutory Sick Pay will only be available for Covid absences if the staff member has been vaccinated, the difficulty of implementing such a policy makes this unlikely. 

I have heard of at least one business owner stating his staff must have the vaccine in order to work. 

There have been one or two well publicised instances of this, however when looking at the detail, it appears that this is not in the context of employees, but contractors who will not be offered work without a vaccination; there is a subtle difference.  

Could employers face potential discrimination claims? 

Yes, in theory, if a rigid rule is applied across the board. While certainly pregnant employees would have protection against such action, in my view it is relatively unlikely that ‘anti-vaxxers’ will have such protection. 

We have been asking staff to tell us if they have received a positive test result. Is that still ok? 

The key to answering this question is the purpose for which the information is being requested, and then how that information is recorded and retained. The handling of information relating to health and any vaccinations must comply with GDPR and DPA requirements, and the information will be considered sensitive personal data.  

In the early stages of the pandemic the concerns were around those who were coming into the workplace and might therefore pose a risk of transmitting the disease to others. That remains an issue in some workplaces, including pharmacies, although even for those employees who are working remotely there does remain a strong public health argument that responsible employers should try and help to ensure that anyone who has a positive result self-isolates. 
 

Rustom Tata is chairman, partner and head of the employment group at DMH Stallard