The year which introduced us to so many new concepts, practices and challenges finally draws to a close with the good news of an effective vaccine. Not just one, in fact, but two, maybe three. Like lock-down, self-isolation and social-distancing before, we need to get to grips with mass-vaccination.
Before anything else, however, it is always worth acknowledging the fantastic effort, co-operation and intelligence it has taken to get these vaccines to this stage in such a short period of time.
Businesses will now be starting to put plans in place for how they get back to normal, or as close as they can. It is tempting to think that the vaccine is the end of the process but really this is where our work begins. The challenges in rolling out the vaccine are myriad and the challenge of getting real people to a location, twice, to be given a vaccine is one of the most significant. This article is intended as a whistle-stop tour of the questions which will be bouncing around many businesses to help identify particular problems you may face and let you focus your efforts there.
What are your obligations as a business? You have a duty to lower workplace risks to their lowest practicable level. In the UK we have the vaccine being rolled out by the NHS, so no direct cost to the public, but businesses will need to make their employees available to attend the sessions. Just like erecting Perspex screens, time for employees during business hours (remember, two doses are required) for vaccination is going to be part of a business’s response to the pandemic.
The question this leads on to is whether you can require an employee to have the vaccine. This is going to be as much a public relations question as a legal one. The starting point will be that as long as the vaccine is approved and recommended by the government, it is officially safe and effective; that approval process has balanced the potential side-effects and effectiveness and the balance has landed on the ‘approve’ side. This shifts the argument to having to show that the vaccine is unsuitable in a particular case and should protect you if there are side effects.
Asking people to have the vaccine is, generally, likely to be a reasonable request. As always, you need to consider the specifics. If someone works from home, is as effective there as anywhere else and does not see anyone else you may decide it is their decision. Obviously, a medical reason why the vaccine is unsuitable (properly evidenced) is a reason to not require that person to be vaccinated.
What you may face is a claim that a person is anti-vaccination, or, more accurately for these purposes, ‘an Anti-Vaxxer’, and that belief is protected under equality legislation. It is unlikely that this will pass the test for a philosophical belief to which protections apply but keep an eye on any decisions of the courts. Most likely the courts will view opinions on vaccination as a difference in scientific opinion, for which we refer back to the approval given by the government, but if the anti-vaccination stance stems from something else there is scope for exemptions, albeit limited to their facts and unlikely to apply to many people.
The take-away here is that if you are faced with a persistent refusal from an employee to be vaccinated there is a good chance that you have options, but you should take advice on the situation in the round first.
What should you do about people who have not had the vaccine in the short term? This is where things get a little more complicated. Again, the starting point is that the government has approved and recommended the vaccine, so if is not for you to have to show it is a worthwhile exercise, we are looking for exemptions. Vaccination is as much about protecting others as it is the person being vaccinated, which is the rationale for potentially excluding those not taking up the vaccine. This moves the question from whether you can exclude to whether you must you exclude. The vaccine is not 100% effective, so you still need to protect vaccinated people from Covid-19/ A policy is going to need to be considered. Will you simply exclude all until vaccination? Continue with your current policy and review when everyone has either had the vaccine or outright refused? When the final 
position is known you will need to consider the effect of any refusal and decide if disciplinary action is needed or if you need to keep paying the refusing employee. Generally, if you have followed all the guidance and the refusal is unreasonable, you will be in a strong position, but take advice before taking any steps.
A very important point: how will you monitor this? Any record you keep of who has and who has not been vaccinated will be ‘sensitive personal data’ for the GDPR and the Data Protection Act 2018 (DPA). Any processing of this data must be strictly necessary for one of the purposes in Schedule 8 of the DPA and you may need to update your policies to cover this. Processing is likely to be necessary to protect the vital interests of the data subject or another individual but can only be used for that purpose and you need to make sure it is not inappropriately retained. You could seek consent for processing but be aware that consent must be “…freely given, specific, informed and unambiguous…” and must be explicit, not implied.
A final data-protection point, you may find yourself processing more sensitive information if you record any reason for the refusal. This data may need to be considered separately from the simple yes/no of the vaccination record.
This has so far all been confined to people close to and fixed to the business. What about customers? Customer-facing businesses need to be ready for more disputes about mask-wearing where people can show they have been vaccinated. For most it will be impractical and unnecessary to only admit those who have received the vaccine but larger businesses with particular risk profiles may need to look at this. The standard of proof and the data protection issues will need to be considered in fine detail.
The human part of the mass-vaccination is complex before we consider the NHS having to get everyone through the door in a socially-distanced way, and then do it all over again three weeks later, without the vaccine getting too warm. This is after establishing a cold chain far beyond any we have established before across the whole country and procured not just the vaccine but also all the syringes and other medical equipment necessary.
Final point? Keep an eye on the guidance and follow it. There are plenty of issue to address before this is over, if you think any may affect you, get advice at the outset.
David Artley, Solicitor, Corporate & Commercial
E: dartley@jacksons-law.com | T: 01642 356500
