In light of the so-called ‘pingdemic’, the Government has recently introduced a limited exemption from self-isolation rules for critical services staff identified as close contacts of someone who has tested positive. The exemption is limited to specific types of employers, only permits named fully-vaccinated workers to undertake critical work and subject to testing, and is only intended to apply until 16 August (when all fully-vaccinated close contacts will be exempt from self-isolation, but will be advised to take a PCR test and only isolate if positive – see here). Employers wishing to make use of the exemption need to contact the relevant government department for their sector with specified information and exemptions will be agreed on a case-by-case basis daily by the relevant government department, the Cabinet Office and the DHSC. Eligible exempt workers will be confirmed in a letter to the employer together with measures that the employer and those workers must follow.
Now that Step 4 of the Roadmap in England has passed, many employers are considering the phased return of employees to the office, bearing in mind their health and safety obligations and the Working Safely guidance. Employers are increasingly likely to face formal or informal requests to work more flexibly, and in any event should now be seeking to formalise their arrangements going forward (potentially as a trial period, given that home-working which was effective when everyone was at home may not be equally so when some/most are in the office). Acas has published new guidance on hybrid working, covering the need to consult staff, potential contractual and discrimination issues, and creating a hybrid work policy.
Another key issue for employers will be determining their approach to vaccination status for those returning to the workplace. So far the Government has made vaccination mandatory only for certain health and social care workers, from November 2021. Employers in other sectors considering making vaccination mandatory need to give careful consideration to the risks of discrimination claims, the contractual position, the fact that some individuals are medically unable to be vaccinated, and data protection issues, in addition to their health and safety obligations to all staff.
Requiring vaccination could potentially amount to indirect discrimination, for example against certain disabled employees who cannot be vaccinated for medical reasons, or where employees are in a protected minority group less likely to be vaccinated; employers would therefore need to be able to justify taking this step. Allowing proof of negative lateral flow test results or previous infection as an alternative to vaccination will go some way to reduce the potential discriminatory impact, although claims might still be possible based on the disadvantage of having to submit to regular testing, so employers will still need to show workplace safety reasons for the requirement.
The NHS Covid Pass app can be used to check this broader status; an official NHS COVID Pass Verifier app has also been created to provide a secure way to verify an individual’s NHS COVID Pass (created for businesses checking status for entry to large events or venues, but available to all). The Information Commissioner’s Office has published helpful new guidance on checking Covid status, which states that simply visually checking an individual’s Pass, without recording the status shown, would not be covered by data processing requirements, whereas making a note of a visual check or digital checks (such as using the Verifier app, even though data is not retained) would amount to processing special category personal data (and therefore the usual requirements as to impact assessments, security, accuracy, proportionality and retention of data etc. will apply). The ICO guidance makes clear that employers would need a clear and necessary reason for recording employees’ Covid status which cannot be achieved without collecting the data; the sector, type of work and health and safety risks will be key. These factors will also be relevant in determining whether the employer can justify any indirect discrimination in requiring status checks.
Employers will need to give careful thought as to whether alternative safety measures in the workplace could adequately protect staff in the particular working conditions. Encouraging vaccination and/or voluntary disclosure of Covid-status will be a safer route; the Government has published new guidance for use by employers to run an internal awareness campaign to help ensure their employees get access to reliable and accurate information about the Covid-19 vaccine. However, going further and offering incentives to encourage vaccination will still risk indirect discrimination claims in the same way as mandatory vaccination/status checks and would therefore need to be capable of justification (although the lesser discriminatory impact would be relevant); there might also be a (perhaps remote) risk of personal injury claims against an employer should an employee have a serious adverse reaction, so this step should only be taken after careful consideration of the risks.
Please do get in touch with your usual HSF contact if you would like to discuss any of these issues further.