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Jemille Gibson

An update to employer considerations regarding vaccination and testing

Back in February, we wrote here about the possibility of employers and businesses requiring vaccinations either amongst their staff or customers. It is now September, and although it is rather sunny as I write, autumn is coming, and winter won’t be far behind. So, now is a good time to revisit things. What’s changed, what is new, and what do businesses need to be mindful of?


What’s changed since February?

In February, it was only older people who had access to the vaccine, with around 15% of the UK population being vaccinated at the time. Vaccines are now widely available in the UK to anyone above 16, with an intention to offer the vaccine to some 12-15 year olds. Around 65% of the population have had two doses of vaccine as at 6 September 2021.

The recommendation to work from home has been removed, and although many people have not yet returned to offices, on 6 September, Transport for London recorded its highest total of morning journeys since March 2020, aided somewhat by the start of most school terms on the same day.

Has anyone gone ahead with compulsory vaccines?

Yes, Pimilico Plumbers, who said they would back in February, have proceeded with job adverts requiring applicants to demonstrate that they have had at least one vaccination.

More significantly, the government has legislated to require care workers to be fully vaccinated in order to provide care services in a care home. This requirement comes into force on 11 November, subject to annual reviews. If a care worker has not been vaccinated, they are unable to enter the care premises until they have been.

No doubt taking a cue from the legislation, University Hospital Southampton NHS Trust has told their staff that if they refuse to take the vaccine, they will be re-deployed away from frontline care.

The government continues to state an intention to require “vaccine passports” for entry into nightclubs and other crowded venues by the end of September. This is still subject to a vote in Parliament, and to the government specifying what venues aside from nightclubs will be affected. Venues are already encouraged to check status via the NHS COVID Pass app, but after September, a recent negative test will not be sufficient to gain entry.

What should employers consider?

No jab, no job – The reaction of some care workers to the impending legislation has been to resign, exacerbating existing shortages in the sector. Outside of the health sector, employers should still be mindful of creating tension by going beyond encouragement to requirements in respect of the vaccine, though, particularly if the case load continues to rise, some employers will consider it justified as a health and safety measure, particularly in industries with a lot of contact.

No Jab, stay at home – We have seen with the rise in infections following the summer festivals that the corona virus is still causing problems. Many employers were forced to close for short periods as staff fell ill and others were required to self-isolate. Whilst the rules on self-isolation have changed, with winter approaching, some employers may want to allow only those who have been double vaccinated to return to the office. Currently that poses an age discrimination risk, which is receding, but may also lead to other discrimination claims. Where individuals can work from home, imposing a need to have two vaccines before being allowed to visit the office may find favour with some employers, despite the risks.

Others still may rely upon frequent lateral flow testing, as being the best means to protect their workforce.

Data Protection – For customer-facing businesses, requiring a customer to show their COVID Pass for entry and leaving it at that, would avoid the need to process personal data. However, where for example employees are required to show their pass in order to enter the office, it may become onerous to check the employee every day they come in. If an employer wants to keep a record of vaccinated staff, and/or keep a refusals book, then the data would need to be processed in accordance with the Data Protection Act 2018.

Adaptability - As we have all learnt over the past 18 months, everything is subject to change. There may be new developments in the pandemic which change how we all need to react.

Get in touch

If you have any questions relating to this article please contact the Employment team on [email protected]

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