Employers, Can You Require Your Staff to Get the Vaccine?
The much-welcomed news of the rollout of Covid-19 vaccinations has many of us dreaming of a return to our normal routines, but many employers may be wondering what this means for the status of their workforce. Can you require that your employees get the vaccine before returning to the workplace?
Before an employer implements a vaccination policy, there are a number of issues that it ought to be aware of:
Under the Irish Constitution, each person has a right to bodily integrity. This means that each person has a right to ensure their body is not unjustifiably interfered with. If an employer were to implement a policy which required an employee to receive a vaccine prior to returning to the workplace, an employee may allege that their right to bodily integrity has been infringed or there could be an accusation of assault if the consent of an employee to vaccination has been coerced.
Not only do Irish citizens have a right to privacy under the Constitution, but they also have rights as data subjects under the General Data Protection Regulation and the Data Protection Acts 1988-2018. By insisting that an employee takes the vaccine, an employer would be processing special categories of personal data about that employee and their medical status.
Employers can process an employee’s sensitive health data provided that there is a legal basis to do so. Many employers may have done so previously in terms of collecting temperature data or return to work forms from employees. It is not yet clear from the Data Protection Commissioner, whether or not an employer can ask an employee if they have obtained the vaccination outside of the workplace. However, the Data Protection Commissioner has issued previous guidance to say that data protection laws should not impede public health issues. There may be a legal basis to process this employee data so that the employer can ensure compliance with its obligations under Health and Safety legislation.
Requiring employees to be vaccinated prior to returning to the workplace could also lead to a situation whereby other employees may inadvertently be informed as to whom has or has not received the vaccine, contrary to an employee’s right to privacy, if their absence from the workplace is noticed and this could also lead to morale issues or stress for other employees.
There may be circumstances where the employer could prove it had a legitimate reason for asking about an employee’s vaccination status, for example if they were travelling as part of work, but these situations will be limited.
If an employer were to introduce a policy of insisting that an employee obtained a Covid vaccine before returning to work, they may open themselves up to a claim under the Employment Equality Acts 1998-2015. There may be some members of staff, who, due to health conditions, religious beliefs or other reasons, could not receive the vaccine.
In addition, if an employee refused and the employer sought to take some form of disciplinary action against the employee there would be an even higher risk for the employer. Such action by the employer could result in employment law claims against the employer such as unfair dismissal, discrimination and/or victimisation claims.
This is an extremely sensitive issue which requires careful consideration and planning by the employer.
What about Health & Safety?
Employers have a statutory duty to provide a safe workplace for all employees. Employers must carry out a risk assessment, take steps to minimise the risk to employees and follow current public health advice. This causes somewhat of a conflict, as employees who contract the virus due to inadequate measures in the workplace may have grounds for a personal injury claim.
Employers may choose to encourage staff to receive the vaccine, and facilitate the obtaining of the vaccine where possible; however adopting a hard-line policy that all staff must be vaccinated before they can return to the workplace, may expose the employer to legal claims under the various headings above by its employees.
To balance this conflict, employers should remain flexible and monitor and assess the risk regularly in line with the Work Safety Protocol published by the Department of Business Enterprise, Trade and Innovation. Employers should have a rigid procedure in place in respect of attendance at the workplace and ensure that staff have access to sanitiser, PPE where necessary, and comply with social distancing.