This week, the Government appears to be reviewing whether the NHS app could be used to explain your vaccine status or your latest Covid-19 test results and whether these “passports” should be used to limit your access to certain places.
Can it be a job requirement? Could vaccine requirements include workplace access?
What is a Covid status certificate?
It appears that the Government is reviewing the “complex” and “ethical” issues associated with whether “Covid status certificates” could be introduced, to support places in limiting access. The thinking is that a person must prove either:
- A recent negative test; or
- Evidence of having been vaccinated.
Why have both? Because, as detailed in our blog on vaccinations, it may be discriminatory to require vaccines as there are certain protected characteristics that mean people may refuse or be unable to be vaccinated. Limiting access to just vaccination, could therefore clearly be unlawful. However, having an alternative requiring a negative Covid test, clearly limits that discriminatory argument, as there are very few protected characteristics that limit someone’s ability to be tested.
This is as opposed to a straightfowrad vaccine passport, where it would be conditional only on having a vaccine. It is another option which is being considered by the Government, but it is widely considered that this may be too limiting and authoritarian, as well as having arising legal concerns.
Can it be a job requirement?
In short, yes. It could be a job requirement to either have a negative test or be vaccinated. In fact, requiring one or the other, actually alleviates a lot of the concerns which employers have about a “no jab no job” policy, which has been widely dismissed as discriminatory and divisive.
One thing which is becoming clear in this debate is that the wider thoughts are that “the Government can’t just let [employers] get on with it” (Mark Harper, MP) and that instead there should be Government guidance for employers on what they can or cannot require, to avoid their possible litigation risk.
Some certainty in this area would certainly be welcomed by employees and employers alike.
In the meantime, we are advising on a case-by-case basis. There will certainly be employers with legitimate health and safety reasons to require employees to have a vaccine unless the employee has a legitimate reason for not having the vaccine. Equally, there are employees who are at risk of losing their jobs, because of a broad brush approach their employer has taken, without considering individual circumstances.
Can people refuse to use vaccine passports?
The government interestingly haven’t made a decision on this yet. At present yes you can refuse as it’s not mandated in law.
It all comes back to why a person may refuse. The discrimination legislation applies to service users as well as employees, but again it has to be balanced against the company’s obligations to everyone else. At the moment, we don’t have passports, and you would expect that if the Government intends to introduce them, they will also give some guidance on the exemptions. Whether there will be criminal liabilities for a refusal, is currently unknown.
What happens if you travel in breach of government guidance?
Travelling abroad will not be permitted until 17 May at the earliest. People are only allowed to travel for essential work that cannot be done from home or for education, a medical emergency or bereavement.
People seeking to leave Britain from March 8 will have to show a new permit proving they are travelling for essential reasons and if you don’t have one, you can be fined £200 and be barred from the flight.
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By Alicia Collinson
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Please note this blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.