As your supporters and fundraisers continue to receive their coronavirus vaccinations, Policy and Information Officer Charlotte Sherman looks at what we know about the legal requirements around vaccinations and testing and answers some key questions.
As the lifting of lockdown measures across the UK rolls out over the weeks ahead, it’s been really welcome to see the public fundraising return and plans for events and community activity shape-up. We have put out guidance to help charities decide when they want to return to in-person activities and how to do so safely, but there are other issues and questions out there which may well be on your, and your supporters’, minds – with a big one being vaccinations and testing.
On 19 April we hosted a webinar with Bates Wells to give an overview of current guidance for face-to-face activities and hear thoughts and reflections on whether and how charities should be thinking about making decisions on vaccinations and testing - both for fundraisers, as well as for participants/attendees at events. Bates Wells have also produced a Covid jab mini guide which is a really useful resource to help you be aware of the legal considerations involved.
This is a complex and tricky area that is quickly evolving and covers multiple areas of law. It’s one that is also very prominent in government thinking across the UK, that businesses are considering (vaccination passports to go to a concert or go to a pub), and that different parts of the public are likely to have differing views.
That means that it this issue needs to be thought about carefully, with charities considering what is right for them, for their employees, and their supporters. While we expect it to be unlikely that there will be many charities and fundraising organisations that will look to make vaccinations and testing mandatory for fundraising, it’s important for every organisation to think about what is right for them. And in making those decisions, we want to make sure that charities have got the right information to hand to navigate through what can be a challenging area.
While we are still in the middle of an evolving situation, there are some practical things that you can think about now and start to prepare to inform your approach to vaccinations and testing:
Although ‘encouraging’ and ‘requiring’ simply seem like a difference in wording, what it means in practical terms are worlds apart. Obligatory testing and vaccinations have a number of legal barriers which, if not accounted for, could put a charity in a difficult position. On the other hand, encouraging staff is easier to do and will often produce the same outcome. PFS, who also spoke at the webinar, spent considerable time raising awareness amongst their fundraisers of the importance of getting tested if they felt unwell, and letting them know there is a stock of tests available in-house should they need them.
Many organisations will also give paid time off for employees to have a vaccination, as well as covering any time off needed from any sickness from a vaccination. It’s worth thinking about how you communicate with all your employees about vaccinations and testing, taking a whole organisation approach which is reflective and tailored of the work your organisation does.
Generally, we expect that the majority of charities and agencies will choose to encourage rather than require fundraisers to be vaccinated to continue their work, with the emphasis being on fundraising safely following social distancing and COVID-secure measures.
Although compulsory vaccinations might feel like an easy solution, it opens charities up to a number of legal risks. Current guidance promotes implementing COVID-secure measures that reduce the risk of transmission and clearly states that these should be followed regardless of whether someone has been vaccinated. With this in mind, we think that it will be challenging to justify mandatory vaccination for the majority of fundraisers.
Firstly, you would need to prove that this is a reasonable management instruction, which is difficult given current guidance, this decision would need to take into account the kind of work you do and if there is a case for making vaccinations a requirement. Secondly, you would need to demonstrate that this approach does not discriminate against those with protected characteristics. You must recognise that some employees might not be able to get a vaccine for medical reasons or religious and philosophical beliefs. Thirdly, if an employee does object to being vaccinated, you should look at alternative working arrangements before you can take any formal action. Finally, you would also need to consider how any such decision would be consistent with the contract of employment you have with your employees, as well as your HR policies.
The only current circumstance where there might be a case for obligatory vaccinations is in care homes, as staff are more likely to be exposed to the virus and pass it on to vulnerable people. At the moment, no decision has been made, although it is an area to monitor as it will not only have an impact on care homes that are registered charities but could trigger similar decisions for the hospices or NHS charities. However, even if this decision goes through there is no indication if it would impact all staff or only staff that are in regular close contact with vulnerable people, so fundraisers could still be exempt.
Another situation come up in the future is if external stakeholders (such as donors or suppliers) insist that they will no longer support or work unless fundraisers involved are vaccinated, or your ability to put on fundraising events is severely impacted. This would need to be backed up with evidence, would need to be justified, and likely need to be approved and made at executive and/or Board level. Even in this circumstance, your decision would have to take into account discrimination laws and look at alternative working arrangements for fundraisers who do not want to be vaccinated.
Compared to current employees, requiring vaccinations for new employees is easier to legally implement. Providing it does not discriminate based on protected characteristics, you can make this a condition for a paid job offer. But how you go about collecting the evidence that they have been vaccinated is not straightforward. Similarly, should someone feel that your decision to not appoint them was discriminatory, you will need to clearly justify why you chose not to hire them. With this in mind, although this is a measure you can take, a charity should consider if it really is necessary before making it a formal policy.
While at the moment we would not expect many charities to be planning to make a vaccination or test a required part of attendance at meetings, or for participating at a fundraising event (e.g., a quiz night, concert, fete, performance), it would be easier to do from a legal perspective compared to the issues relating to employees.
It would be possible to include this in the terms and conditions of participating in or buying a ticket for a fundraising event, but before deciding to do this you should consider if this is a reasonable position to take, if it can be implemented fairly, and what it means for your donor experience. An area to watch to help inform your decision is the ongoing COVID passports debate.
Testing is not as invasive as vaccinations and has no known side-effects, meaning it is generally met with less resistance. That said, if you were to insist a fundraiser gets tested, then it is vital you can justify why. This should be straightforward providing your reasoning is sound, for example, if someone has come into contact with another person who is positive for COVID-19.
However, it may be questioned why an employee must be tested if they have stuck to the COVID-secure measures that you have put in place (and which you must have in place in accordance with government guidelines).
If you are going to ask anyone for information regarding vaccinations or testing, then you must have a plan on how to collect and store it compliantly. As you are asking for medical information, it is considered special category data meaning there is an extra layer of regulation that means you must be clear on why and what you are trying to achieve. The ICO has produced guidance on this which you can read here.
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