One of the questions being explored by the UK Government in its roadmap out of lockdown is the extent to which “Covid status certificates” could be used.

So far, very little has been said about what role these certificates will play in safely reopening offices and workplaces. According to press reports, Nicola Sturgeon has said that she is “open minded” about using Covid certificates for certain activities and the UK Government has stated that it hopes to adopt a consistent approach across the four nations.

To be clear, what the UK Government is proposing in terms of a Covid status certificate is broader than a “vaccine passport”. A person’s Covid status could be demonstrated by “an up-to-date vaccine status; a negative lateral flow or PCR test taken at a test site; or by proof of natural immunity.”

The Covid status certificate is currently being trialled at selected events including football matches. Boris Johnson has mentioned the possibility of pubs using the certificates, prompting fierce opposition from the hospitality industry.

If the decision is taken to proceed with the introduction of Covid certificates then my best guess is they will be optional for employers. Putting aside the fact that the concept of Covid certificates may well be met with a mixed reaction from employees, there are legal issues that employers will need to consider – discrimination risks in relation to those who do not want to be vaccinated because of health reasons or strongly held beliefs, or are not able to be vaccinated, in addition to data protection and privacy issues.

Employers who choose to use Covid certificates should therefore first of all identify which roles would justify a certificate to minimise a number of employment-related risks. Would they need frontline staff or certain groups of staff to hold a certificate?

Employers should also think about any unintended consequences. For example, will employees refuse to work alongside colleagues who do not provide a certificate? We saw something similar happen at the start of the pandemic with some workers refusing to work alongside people who had refused temperature tests.

Another unintended consequence of certificates could be that they create a false “safe” status. People may not follow the social-distancing and hygiene measures if they believe they have immunity, when in reality we still do not know the full impact of vaccination on transmission.

Meanwhile, the UK Government is conducting a review into how social distancing may be relaxed in the workplace and has said that this is linked to the outcome of Covid status certificate review. This may prove to be the incentive for employers to introduce the certificates. Will we, for example, see a system where workplaces are able to lift or amend the relevant physical distancing rules if their office workers hold a Covid certificate?

The less controversial alternative to Covid certificates is regular workplace testing on a voluntary basis. The rules and availability of free testing are different in Scotland and England. However, experts advise that the accuracy of lateral flow testing means that they do not provide a complete solution. While employers await the details of the social-distancing and Covid status certification reviews, it seems clear that employers are going to require a range of Covid-related measures to ensure their workplaces are safe and reduce the risk of transmission. Covid risk assessments, social distancing, ventilation and enhanced hygiene measures all play a part.

If Covid certificates are to play a role in a workplace setting, clear guidance for employers which draws all of these strands together would be a welcome next step.

Gillian MacLellan is a partner at international law firm CMS