The reopening of the borders has brought joy and apprehension in equal measure. Employers and employees are now able to undertake work and leisure related travel, in accordance with the guidelines set by the States of Guernsey and the Government of Jersey. As such the question of vaccinations has become at the top of the list for many, particularly for employers in regards to whether their staff are vaccinated? If so, can employers ask employees if they have been vaccinated and hold this information?
Employers have a duty of care to employees and the argument could be made that this information may be required to be able to assess the risks faced by the business and to be able to make informed decisions on individual employees personal circumstances, such as employees who are pregnant; those with medical conditions which make them more vulnerable as result; or those who have caring responsibilities for people falling in the vulnerable persons category. This being said key considerations need to be taken as the answer is not as simple.
The Office of the Data Protection Office (‘OPDA’) has issued guidance on this subject. Similar guidance has been issued by the Jersey Office of the Information Commissioner (‘JOIC’).
Information on a person’s vaccination status is their private health information and is classed under the law as special category data. As such it must be treated with greater care than less sensitive information.
Two data principles to be aware of are whether the information being collected or shared is necessary and whether collecting this information is proportionate. Employer’s use of such data must be fair and relevant for a specific purpose. It is also important to bear in mind that accepting a vaccination is a personal decision which could be influenced by several factors and a person may legitimately want their status to remain private.
Before collecting such data, employers are minded to consider the following questions.
- What you are trying to achieve?
- How recording employee’s vaccination status will help you achieve this?
- Does the employee contracts or policies include clauses on collection of private health information? If so is it sufficient to be relied upon or does additional ‘explicit’ consent need to be obtained?
- Is this information needed for a specific purpose at this moment in time or is it being recorded on a ‘just in case’ basis?
- Can you achieve your goals without collecting this data and by other means such as internal control measures through social distancing, mask wearing and good hygiene?
- Does it fall within the authorised processing conditions approved by the Committee for Home Affairs – such as where required by law and if so is, does the purpose for collection fall within these conditions?
- Will holding this information result in unfair or unjustified treatment of employees?
The answers to the above are dependent on each employer’s circumstances including industry sector, the kind of work employees undertake and the health and safety risks present in the workplace, in addition to equality and human rights issues.
The JOIC notes that if you decide that you can justify recording whether your staff have had the vaccine, it is important to be transparent with employees, include it in staff privacy policies and communicate to staff in a clear manner. Employees must understand why the data is being collected and what this data is being used for. Employers must also ensure accuracy of recordings and that the storage of this data is secure. Routine disclosure of information among colleagues is not advised unless there is a compelling and legitimate reason to do so.
Employers are also urged to regularly review whether there are still grounds for the collection and retention of this information as the vaccination roll-out progresses, more people receive the vaccine and more information becomes available about its effectiveness. This should include monitoring the latest government and scientific advice on the vaccine roll-out and coronavirus restrictions.
This information is intended as an aide memoire and further advice should be sought as required.