Can we ask staff to let us know if they have been vaccinated, and can we keep a record of this?

Posted in : Seamus Says - Employment Law Discussion on 7 May 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Coronavirus; Vaccination; Data Protection; GDPR; Medical Records; Sensitive Personal Data

Scott: "Can we ask staff to let us know if they have been vaccinated, and can we keep a record of this?"

Presumably, there are data protection issues here and highly sensitive information when it comes to medical records and so on. What's the position there, Seamus, about asking staff and trying to keep records?

Seamus: Well, I don't think that there's any issue with an employer asking a member of staff either if they've had the vaccine or what their position is in respect to the vaccine. I would need to give some consideration to whether or not that would be something that you could include on a document for a recruitment exercise. I just maybe would like a little bit of time to think about that.

Certainly, for existing staff and in regard to risk assessments within the workplace, for whatever industry that you're working in, I think that it is a fair and reasonable question to ask the employee.

Again, you can't force the employee to provide you with an answer, but certainly, where there is a refusal, I think that you can investigate with the employee as to why they don't want to make a disclosure or why they don't want to provide the information.

But certainly, I don't see any issue in asking the question. I think it's particularly relevant as we're going through a pandemic. I think there's a justification and a clear reason for asking the question.

In relation to retaining data about the information, I think if it forms part of a risk assessment, then there's a justification to retaining data in that respect.

Again, I think you need to be clear with the employee that you're going to retain that data, and again, as usual, that you're only going to retain that data for the length of time that you need to retain it for. After that time, it will be disposed of.

But look, we're at a heightened point in relation to the pandemic. We're hopefully coming out the back end of it. I did hear, I think, Boris Johnson say that they hope by the end of June that we would be as back to a best normality as we could hope for.

But at the same time, depending on the industry and on the work that you're doing, it could be very relevant in relation to the employer's knowledge as to whether the employee has taken a vaccine or not, and even in particular in relation to an employee obtaining and getting symptoms of COVID down the line as well and what the employer's steps should be in relation to that.

For me, as long as you're able to justify the reason for retaining the information and that you're only retaining it for the timeframe that you need to retain it for, I don't have a problem with that.


This article is correct at 07/05/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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