The Government’s vaccination programme has resulted in large numbers being vaccinated. As the vaccination programme was beginning to accelerate and reach those of working age the debate was about the legality of “no jab no job”. However, the NHS app allows those who have been vaccinated to demonstrate their vaccination status by providing individuals with the new NHS Covid Pass.
Those aged over 18 can obtain an NHS Covid Pass for events in the UK. To obtain a Covid Pass an individual must satisfy one of the following requirements:
Be fully vaccinated with a Covid 19 vaccine used in the UK. The pass is available two weeks after the 2nd dose or two weeks after one dose of the Janssen vaccine;
A negative PCR test or rapid flow test within the past 48 hours. The pass is available as soon as the result is obtained but if the test is done at home will require reporting the test result on Gov.uk
A Positive PCR test in the past six months. The Pass is available once an individual has finished self-isolating and up to 180 days after taking the test.
Covid Passes became widely available from 19 July and are being used at some major events. Digital versions of the Pass are available from the NHS App or NHS website. For those who have been fully vaccinated or had a positive test result the barcode on a PDF remains valid for 30 days, the bar code will refresh on each new log in. Another App, the NHS COVID Pass Verifier will confirm whether the bar code remains current and valid.
Guidance issued by the NHS indicates that use of the Pass is voluntary but encourages organisations to use the Pass where people are likely to come into close proximity with a large number of people for sustained periods of time. It recommends that the App should not be used as a condition of entry, these settings include essential services and retailers who have stayed open through the pandemic.
Although the Government’s focus has been on the use of the Pass at crowded venues and for large scale events with a focus on ensuring the safety of those working there and attending the event / venue, it seems that the Pass can be used by businesses to help determine employees’ vaccination status. There seems nothing intrinsically wrong with using the Pass as a means of providing an additional layer of security and reassurance when reopening office spaces to require the Pass to be shown.
Whilst at present it seems possible to use the pass in this manner there are a number of issues that employers will need to take into account and prepare for.
Data Protection – If an employer were simply to look at the pass and make no record of an employee’s vaccine status no personal data would be processed. Whilst this is a possibility it would require the Pass to be reviewed every day. Equally, if an employee were refused access and a record were kept of that fact, this would involve processing special category health data, as would record recording and storing details of an individual’s vaccine status. Where such data is recorded an employer would need to:
Identify a lawful basis for processing the data. The most likely basis for doing so would carrying out legal obligations in the field of employment or substantial public interest. An employer’s justification for processing such data would need to focus on the employer’s duty of care to employers to provide a reasonably safe working environment and preventing the spread of the virus.
Carry out an impact assessment identifying the risks associated with collecting such data and how those risks could be reduced or eliminated – an employer would need to consider how the data was to be kept, for how long and who should be given access to it.
Employees would need to be informed why their data was being processed, where it was being stored and for how long it was to be retained.
If businesses were to decide to use the Covid Pass as a means of regulating who accessed office space it would seem to pose fewer risk than the “No jab, no job” policy that was being endorsed by some a few months ago. However, it is not without its risks and there would be the possibility of claims being made on the basis that requiring someone to demonstrate their vaccine status was indirectly discriminatory. However, since indirect discrimination can be justified on the basis that it is a proportionate means of achieving a legitimate aim, the prospects of such claims succeeding are likely to be low.
There might well be arguments about age discrimination but in a very short period of time it will have been possible for all those of working age to have had two vaccinations. There may be some who cannot have the Covid vaccination because of a medical condition, or who have had an adverse reaction to the first dose, or who have religious or philosophical objections to the vaccinations. These are likely to be few in number and could be addressed on a case by case basis.
The Pass is only available to those who have had both vaccinations in England and may, therefore require employers to show some flexibility about the evidence they will accept to demonstrate an employee has been full vaccinated.
Whether use of the Pass in the workplace should be voluntary or compulsory will depend upon the stance employers wish to take. A voluntary approach might avoid the prospect of claims, if employers make the Pass mandatory then it will need to ensure that those who are opposed to the use of vaccines and others who are not fully vaccinated have access to lateral flow tests and how and where those tests should be undertaken.
If the use of the Pass is compulsory, employers should prepare a written policy setting out how the policy will be applied and the consequences of failing to comply with the policy.
The Covid-19 Pass provides employers with another tool to help ensure the safety of workers as they return to work, but it does create issues that an employer needs to take into account before implementing a policy with regard to the Pass.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.