Vaccination: key HR considerations for industry employers

The rollout of the COVID-19 vaccine has provided a light at the end of the tunnel for many businesses, bringing with it the promise of a return to normality.

However, there still remains many questions for employers, particularly in the construction sector.

BICSc partner, Citation, has explored three of the most commonly asked questions that businesses need to consider before they create and implement any kind of vaccination policy for staff. However, it is still early days and there is limited guidance available so we cannot be sure of the view employment tribunals will take, particularly in terms of drawing the line between necessary and unnecessary infringement on an individual’s right.

If in doubt, you should always seek your own independent professional advice.

Can I ask my employees if they have been vaccinated?

With the vaccine rollout still in progress, there is little guidance on this, and we cannot be sure where employment tribunals will draw the line between necessary and unnecessary infringement on the individual’s right.

Employees are under no medical obligation, and the government isn’t making it compulsory for employees to disclose their vaccination status (with the exceptions of specific roles/sectors, such as those in primary care).

It is a fair question to ask, but where an employee objects and action is taken, the employer will have to justify the need for requiring them to reveal their vaccination status.

Employers might find it helpful to have a discussion with the individual about their concerns for not wanting to disclose their status and to chat through their concerns, e.g. if they have data protection concerns.

You should also be mindful of private concerns such as underlying medical conditions.

Ultimately, this is less onerous than a vaccination policy but still required to find a balance between the rights and impact on the individual against the needs of the business, as well as a business ensuring consistency in how they treat staff.

Can I keep a record of whether my employees have been vaccinated?

Collecting data on vaccination status is processing ‘special category data’ under the Data Protection Act 2018, which means you need additional justification for doing so – it must be ‘clear and compelling’.

Be clear with your employees on what you’re trying to achieve and how collecting this data will help you achieve this. If you do decide to record the vaccination status of your employees, you should have a clear policy which covers:

Can I ask my employees if they have been vaccinated?
Can I keep a record of whether my employees have been vaccinated?
Can I suggest to my employees that they should be vaccinated?
What personal data will be required
What you’re going to use that data for Who will the data be shared with – this will be particularly important if you send employees onto client/customer sites and they request information on whether your employee has received their vaccination
How long you plan to keep the data
What decision you intend on making based on the data
And you must also give employees the opportunity to discuss the collection of their data if they have any concerns

Can I require any job applicants to declare whether they’ve been vaccinated or not?

In terms of recruitment, if you made it a condition that prospective candidates must be vaccinated to apply for a role within your business, there’s the possibility of discrimination claims on a number of fronts.

Given that the vaccination programme is being rolled out on the basis of age, if you were to say that vaccination was a condition of employment, then for at least a few months, you may be ruling out younger candidates.

There’s also the issue for those who are recommended not to have the vaccination based on underlying medical conditions.

The guidance for pregnant people has changed significantly over the last few months. Although currently pregnant people are offered the vaccine along with others in their age group (or before if they have a specific medical condition), many may be reluctant to get vaccinated during their pregnancy.

All of these situations pose quite difficult considerations for a manager to decide as to whether or not that would be an acceptable reason not to have the vaccine.

How can BISC partner, Citation, help?

Creating and implementing any kind of COVID vaccination policy is a new and complex area of Employment Law, one that has no precedent and requires careful management. After working with many businesses across the country throughout the pandemic, Citation knows how tough it can be to meet your obligations while protecting your business.

But you don’t have to do that alone. When you partner with Citation, their team of experts become an extended part of your team. So, we’re on hand to make sure that you’ve got access to all the information you need to keep you compliant from day one.

If you are considering introducing a vaccination policy in your business and you want the help, guidance and advice of Citation’s expert team, you can call 0345 844 1111 for a chat about your business’ needs.

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