Catherine O’Flynn of William Fry highlights what employers and staff need to consider about the Covid-19 vaccine if they’re planning to return to the office.
Will Covid-19 vaccines be a requirement for people returning to the workplace? What kind of policies should companies consider and what are the legal implications?
As the Government continues its vaccine roll-out plan, Catherine O’Flynn, head of the employment and benefits team at William Fry, answers some key questions that employers and employees may have.
Can employers require employees to be vaccinated to come into the workplace?
Currently, there is no legislation in force that makes vaccination of any kind mandatory. State-operated vaccination programmes have historically been provided on a voluntary basis.
While the Minister for Health has the power to introduce regulations to provide for mandatory vaccination programmes for the general public in respect of infectious diseases, there is no indication that the Government intends to introduce such a programme for Covid-19 vaccination.
No guidance has been issued to date that suggests an employer could require an employee to get a vaccine based on an employer’s belief that it is a necessary requirement for the employee’s job.
If an employer were to require employees to obtain the vaccine, there is a strong risk that any such decision would likely be challenged by employees who, for whatever reason, do not want to or are medically advised that they should not get the vaccine.
What kinds of policies are employers looking at in terms of Covid-19 vaccines?
Employers are examining policies which they currently have in place to see how they may need to be updated to account for the scenario where there may be a mix of employees who have and who have not received the vaccine. This will likely be the reality for many workplaces in the coming months as Covid-19 vaccinations become more widely available.
It is important for employers to remember their statutory obligations towards employees as regards health and safety matters. Employers should keep their risk assessments and safety statements under constant review to ensure they continue to identify and address hazards relevant to their employees’ working environments, including those working from home, as matters develop.
It is also a good time for employers to consider whether they intend to allow employees over the coming months to continue to work from home, to allow employees to return to the office when this is possible, or to provide for a hybrid of home and office work. We recommend employers review their remote working policies to ensure they adequately address how they intend to operate over the coming months.
Employers should also examine and update their data protection policies and notices as necessary to ensure they address processing of personal data relating to health matters, such as vaccinations.
Will the vaccine potentially be available for staff through their employers?
At present, the Government is operating the vaccine roll-out. Vaccines are not yet commercially available. If and when this does occur, it seems likely that employers will opt for a similar approach to the flu vaccine, whereby an employer provides information about the flu vaccine to employees and often arranges for the flu vaccine to be made available to those who wish to receive it.
Employers may also decide to actively encourage employees to receive the vaccine. We recommend employers consider now whether they intend to do so and, if so, what communications strategy they will put in place in this regard.
What can an individual do if their employer tries to force them to get the vaccine?
It is unlikely that an employer will be able to require employees obtain a Covid-19 vaccine without exposing itself to legal challenges or industrial relations issues.
Such legal challenges could be made by employees based on the constitutional right to bodily integrity or the right to privacy, for example, before the civil courts. Employees could also claim under employment equality legislation that they are being discriminated against for not receiving a vaccine if employers do not allow them back into the office or do not hire them for this reason.
Employees could submit an employment equality claim on grounds such as disability if their doctor has advised they not get the vaccine because of a medical condition or age, given the current Government strategy is to ensure the youngest groups in society will generally be the last cohort to receive a vaccine.
Pregnant employees may also claim that they are being discriminated against if they have been advised not to receive a vaccine for medical reasons. An employee could also submit a claim for unfair dismissal if their employment is terminated because they did not want to receive a vaccine.
In addition, if an employee were mandated to receive the vaccine by their employer and the employee experienced adverse effects as a result, an employee could take legal action against their employer for personal injury.
An employee who does not wish to receive a vaccine may also file a grievance under their employer’s grievance procedures. The matter could also be raised with an employer on a collective basis via trade union representatives if there is collective representation in the workplace.
Will employers who discriminate against employees face penalties?
As noted above, if an employer discriminates against an employee who refuses to be vaccinated for reasons relating to the protected grounds under employment equality legislation, the employer will likely face a discrimination claim.
The protected grounds are gender, civil status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller community. If an employee’s claim is successful, they could be awarded up to 104 weeks remuneration.
What would your advice be to employers in approaching vaccination policies?
It is advisable for employers to approach vaccination policies with caution. It is understandable that employees will be reluctant to receive a vaccine considering it is in the early roll-out stage. For this reason, vaccination policies should include an overview of the benefits associated with receiving the vaccine and the importance of receiving a vaccine to ensure safety in the workplace.
The Work Safely Protocol indicates that employers must ensure that their risk assessments and safety statements under health and safety legalisation are updated as part of the employer’s Covid-19 response plan. Risk assessments should reflect the availability of vaccines. Employers should consider whether additional measures are required to control and minimise the risks for employees who do not want to receive a vaccine, such as continued compliance with social distancing guidelines and use of face coverings.
There are also data protection issues relating to Covid-19 vaccines that must be addressed in vaccination policies. Employers will be keen to confirm whether employees have or have not received a vaccine, but it is important to remember that employers’ duties under data protection legislation remain the same. Employers are obliged to keep employee personal data confidential and secure and to ensure that data concerning health is only processed where there is an appropriate legal basis.
The Data Protection Commission issued guidance that clarified that GDPR provides a legal basis for processing health data where the data processing is necessary and proportionate. Employers should ensure that the legal bases for processing data is clearly explained in their vaccination policy. In addition to this, employers should monitor the necessity and proportionality of processing employee information in line with Government guidance.