CORONAVIRUS - 15.01.2021

Asking about an employee’s coronavirus vaccine status

Coronavirus vaccines have now been approved and are being rolled out. Can you insist that an employee discloses whether they’ve had the vaccine or is it none of your business?

UK vaccine rollout

In December 2020 two coronavirus vaccines were approved for use in the UK by the Medicines and Healthcare products Regulatory Agency.

Whilst the government has drawn up a priority recipients list, apparently enough orders have been placed to ensure that all adults can eventually receive the vaccine if they wish.

Questions about status

As the law presently stands, you can’t insist that an employee has a coronavirus vaccine . This is a matter of personal choice which may be affected by other factors, e.g. health conditions, allergies, fertility concerns or personal or religious beliefs.

But can you ask if they’ve had a coronavirus vaccine? This question itself isn’t unlawful but that doesn’t mean it should be put to your employees.

Legal position

Any questions about vaccine status will always be deemed sensitive personal data. The collection of sensitive personal data is governed by the GDPR which states that the data processor - which will be you in the employment setting - must have lawful grounds and a legitimate reason for collecting and processing such data.

What’s legitimate?

Curiosity is not a legitimate reason. Neither is: “we require this information to keep our workplace safe” , even if that’s the motivation or thinking behind the question. Whether or not you have a legitimate reason for asking about vaccine status will depend on your workplace and how your employees work.

For example, if all of your employees permanently work from home, their coronavirus vaccine status, like any other vaccine status, is likely to be irrelevant to you. So you shouldn’t ask about it.

Other considerations

Where you think you might have a legitimate reason for asking about vaccine status, e.g. because your employees work in close proximity to others, you still need to tread carefully.

The difficulty with the coronavirus vaccine is that there are still so many unknowns. Plus, those vaccines that are currently available don’t offer 100% effectiveness or guarantee zero risk of transmission. On this basis, some legal experts argue that demanding to know about an individual’s coronavirus vaccine status in any workplace setting would always breach the GDPR .

Tip. Until the legal position is clarified by the Information Commissioner’s Office, our advice is don’t compel your employees or job applicants to disclose their coronavirus vaccine status to you.

Tip. You could encourage staff to voluntarily disclose this information. Should you do so, it will still need to be processed as sensitive medical data in accordance with the GDPR and that data can’t be kept for any longer than is necessary.

Tip. Alternatively, if you just want to get an idea of likely vaccine uptake in your workforce, you could ask staff in passing: “what do you think about the latest coronavirus vaccine developments?” . Just don’t make any written note of their answers!

Demanding to know about coronavirus vaccine status is risky and could well breach the GDPR. The information should only be sought where you have a legitimate reason and the answer will always amount to sensitive personal data. If you simply want to know about likely uptake, you could ask staff their opinion on the vaccines.

© Indicator - FL Memo Ltd

Tel.: (01233) 653500 • Fax: (01233) 647100

Calgarth House, 39-41 Bank Street, Ashford, Kent TN23 1DQ

VAT GB 726 598 394 • Registered in England • Company Registration No. 3599719