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Covid-19 Vaccine and the Workplace– What is the Position for Employers and Employees

The COVID-19 vaccine is currently being rolled out in Ireland however, it may be some time before there is a return to a normal workplace. To date, there is no legislation in force that makes vaccination of any kind, mandatory in Ireland. Furthermore, there is currently no indication that the Government will make the taking of any of the COVID-19 vaccines a mandatory requirement. Where does that leave employers and employees and what is the potential impact on the workplace?

It is not unreasonable to consider that all employees in the workplace will choose to receive a vaccine. However, employers cannot insist on their employees taking the vaccine, without any statutory basis for same, such as health and safety requirements. There are a number of considerations for employers in this context.

Constitutional Protection

Under Article 40.3 of the Constitution, there is an implied right to bodily integrity i.e the right to not have your body or person unjustifiably interfered with. Additionally, at European level, under Article 8 of the European Convention on Human Rights, everyone has the right to respect for his private and family life. Any mandatory vacation in the workplace may be faced with some objection, with an employee relying on the above arguments in opposing any such mandate. However, the health and safety of the public may trump these Constitutional protections in certain situations which would justify the consequences that those who decide not to take the vaccine will have to take on board.

Equality and Discrimination

The Employment Equality Acts 1998-2011, also sets out 9 grounds under which discrimination is prohibited, namely gender, civil status, family status, sexual orientation, religion, age, disability, race or member of the travelling community. An employee may consider grounds such as religion, age, gender (due to pregnancy) or disability in making a decision on whether to take the vaccine.  It is therefore essential that any employee who chooses not to be vaccinated on the basis of age, religious belief etc, should not be the subject of any different adverse treatment, which could result in a claim to the Workplace Relations Commission (WRC) arguing discrimination.

Health and Safety Considerations

Under the Safety, Health and Welfare at Work Act 2005-2014, employers and employees are subject to certain obligations. Employers are required to conduct risk assessments to identify hazards relating to the workplace and in turn, take steps to control and minimise any risks presented by these hazards. Employees also have a duty and are obliged to take reasonable care to protect their own safety, health and welfare and that of their co-workers. While they are also obliged to cooperate with their employers in this regard.  In practice, it is likely that employers could rely on this obligation in seeking employees to get vaccinated, especially as there is new data that shows that there is reduced onward transmission of COVID-19 from a person who is vaccinated.

The Department of Enterprise, Trade and Employment also published a Work Safely Protocol in 2020 which was last updated in on the 22nd February 2021. The Protocol incorporates the current advice on the public health measures needed to reduce the spread of COVID-19 in the community and workplaces. The Protocol requires employers to review and update their occupational health and safety risk assessment in light  of the pandemic. Therefore, employers may also rely on this obligation to require their employees to be vaccinated where possible.

The difficulty for employers will be the balancing of their statutory obligations in maintain a safe workplace and safety for their employees while also considering the basis for employees who decline to be vaccinated. The key will be whether or not the declining employee has a legally protected basis for such refusal i.e. a medical or religious basis. A conspiracy theory is not a legally protected basis for refusing to take the vaccinate and therefore an employee who decides not to take the vaccine on this basis will have to accept the consequences of such a decision.

Data Protection and GDPR Considerations.

In March 2020, the Data Protection Commission issued some guidance on Data Protection and COVID-19 stating that “Measures taken in response to Coronavirus involving the use of personal data, including health data, should be necessary and proportionate”.  Many of the steps and measures taken by employers will involve the processing of personal data of individuals, including in many cases, sensitive special category personal data relating to health. Article 6 of the GDPR provides a number of legal bases for processing of personal information and Article 9 further provides conditions permitting the processing of Special Categories of personal data, such as health data. This should be borne in mind by employers when processing any personal data in relation to employee vaccination where there is no clear guidance. However, it does not prevent employers from making enquiries as to the basis for any refusal to take the vaccine. It just means that the answers may need to be treated as sensitive personal data.

Takeaway for Employers

These are important considerations which must be borne in mind by employers when addressing the employee vaccination and the potential impact on the workplace.

–   Employers should update any risk assessments of the workplace, whether the workplace is at home or at the Company’s location, in line with the Safety, Health and Welfare Acts and the public health guidance on COVID-19.

–   Employers should then see if vaccination is necessary to address any of these risks and whether it is required by the public health guidance on COVID-19 and which employees this will impact.

–   Enquire with those specific employees first as to whether or not they have any issue with taking the vaccine when it becomes available to them and if so, ask for the basis for such issue.

–   Check with the remaining employees to see if any of them can assist in the task of an employee who is unable to take the vaccine for a legitimate and legally protected reason.

–   Consider alternative work for those employees who are unable to be vaccinated and reasonable accommodations and non-discriminatory treatment where necessary.

–   Further consideration and legal advice should be sought before considering what to do with employees who simply refuse to take the vaccine as this will depend on the specific business and the safety risks involved. Such actions may range  from alternative role to unpaid leave to disciplinary procedure.   

Helpful Links:

Work Safely Protocol – https://www.gov.ie/en/publication/bb7fd-work-safely-protocol/

Data Protection Commission : https://dataprotection.ie/en/dpc-guidance/blogs/data-protection-and-covid-19

Health and Safety Authority: https://www.hsa.ie/eng/Topics/Managing_Health_and_Safety/Safety,_Health_and_Welfare_at_Work_Act_2005/

Authors – Anne O’Connell & Ethna Dillon

25th February 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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