The Impending Return to Work: Essential Considerations for Employers Regarding COVID-19 Vaccination

An employer's essential legal FAQs guide on COVID-19 vaccination and employees. 

The positivity of a successful COVID-19 vaccination campaign is palpable. From small businesses in rural towns, to multinational tech companies, to the civil and public service, the return to society and the workplace is throwing up fresh challenges for businesses and their staff. This upcoming return to the physical workplace is one of the thorniest agenda items facing the Government as it finalises the next stages of the reopening plan.

It is important for employers to consider their role in the return to work process and the potential impact on their employees, who are likely to have a number of concerns. We set out answers to a variety of queries that we have received from clients in recent weeks. These answers are subject to the evolving Government guidance and the new version of the Work Safely Protocol which is expected imminently.

1. Can employers require employees to be vaccinated?

No. It is not permissible for employers to require employees to be vaccinated. We all have a right to privacy, autonomy and bodily integrity under the Constitution. The right to bodily integrity is the right to protect our bodies from unjustifiable interference.

There is no Government guidance or regulation compelling individuals to take the vaccine in Ireland. There is no indication that this position will change in the future. The Work Safely Protocol states that getting vaccinated against COVID-19 is ‘voluntary’ and therefore workers make their own individual decisions in this regard.

2. Does this position change if an employee needs the vaccine to perform their role?

This question often arises in the context of employees who work in healthcare or pharmaceutical environments, and/or who regularly travel for work or carry out work on client premises. The position does not change and it is not permitted for employers to request employees to get vaccinated.

We anticipate that the Workplace Relations Commission, the Labour Court and the civil courts will be reluctant to consider that taking a vaccine is a ‘requirement’ of a role. This is especially the case when the work can be performed remotely or where the consequence of not having a vaccine is that an employee must enter into quarantine for a period of time upon entry to a country, as opposed to not being permitted at all.

Advice issued by HIQA to NPHET in April 2021 indicates that the introduction of a mandatory vaccination requirement would be considered the most intrusive intervention and that less intrusive interventions may be available such as one-to-one conversations, on-going testing and use of PPE.

3. Do employers have to accommodate people who cannot get the vaccine for certain reasons such as medical reasons or religious beliefs?

If there are employees who do not want or cannot have the vaccine on grounds of religion or for medical reasons, employers must recognise that these are protected grounds under employment equality legislation. An employer may fall foul of discrimination against an employee in that context. Such employees could argue that they are being treated differently to their work colleagues because of their religious beliefs or gender due to pregnancy concerns etc.

If a role is identified as high risk in terms of COVID-19 and an employee is not vaccinated, redeployment to another role should be considered.

4. Can employers ask employees to confirm if they are vaccinated and retain this data?

Generally no, an employer cannot ask an employee if they have or have not been vaccinated. This is similar to comparable situations in which privacy and data protection laws give protection to employees, such as an employer cannot ask an employee what their marital status or sexual orientation is. This is an extremely sensitive issue which requires careful consideration and planning by the employer. Leo Varadkar has referred to the matter of questioning employees regarding their vaccination status in recent comments so we expect that the new Work Safely Protocol will address this directly.

Employees have privacy and data protection rights that must be respected, and an employer would need to have a very strong justification for requiring an employee to disclose this information. Due to the inherent power imbalance between the employer and the employee, as with all employment-related processing activities, relying on consent would also be fraught with difficulty, as it would be unlikely to be ‘freely given’.

With the absence of specific legislation in this area, it may be possible to assert that collecting this data is necessary to achieve the employer’s ‘legitimate interests’ pursuant to Article 6(1)(f) GDPR. However, the employer would need to show that requesting this information is both necessary and proportionate to achieve its purpose and it outweighs the employee’s right for such data not to be processed.

Prior to operationalising any activity in this area, the employer would need to conduct a data protection impact assessment (DPIA) in advance in accordance with Article 35 GDPR. Employers would need to ensure high levels of transparency, particularly around the types of data being processed, the purposes of the processing and the implications for data subjects who do and do not participate.

5. Can refusing the vaccine be disciplined?

Irish bodies of competent jurisdiction, for example the Workplace Relations Commission, may be slow to consider a decision not to take the vaccine as ‘unreasonable’ or accept an analysis that taking a vaccine is a ‘requirement’ of a role. Disciplining or dismissing an employee for not getting the COVID-19 vaccine would leave the employer exposed to legal action being taken by the employee against the employer.

If an employee refuses to take the vaccine, it is recommended that the employer engages with the employee and considers alternative measures such as redeployment to another role. At all times, the employer should bear in mind that there may be various reasons why an employee chooses to refuse the vaccine and will need to consider its obligations under the Employment Equality Acts in terms of reasonable accommodation.

6. Can employers incentivise employees to get vaccinated?

Employers may take a pro-vaccination stance and encourage or incentivise employees to get vaccinated, provided all employees are treated equally and data protection obligations are complied with. Allowing time-off for employees to receive a vaccine is encouraged.

The Work Safely Protocol provides that employers, working together with workers and their representatives, may wish to provide advice and information to allow employees to make an informed decision. Incentive programmes should be reviewed to ensure they are compliant with equality and data protection legislation.

7. Can a private employer carry out vaccinations at their workplace?

No. COVID-19 vaccines are available only through State healthcare channels such as the HSE.

8. Does an employee have a right to refuse to work alongside another person who has not been vaccinated?

No employee has the right to know if their colleagues have been vaccinated.

However, an employee can assert that working physically alongside unvaccinated employees places them in ‘serious and imminent danger’. Under the Safety, Health and Welfare at Work Act 2005, an employee cannot be penalised for leaving work or taking measures to protect themselves from that danger.

‘Serious and imminent danger’ is determined from the perspective of the employee and depends on the personal circumstances of the employee and the workplace.

9. If employees take time off work to get the vaccine, do I have to pay them?

There is no prescribed approach. There is an incentive however to encourage employees to get the vaccine and many employers are advising their employees that they can attend an appointment to receive the vaccine during working hours without losing their entitlements to pay etc.

10. What steps can employers take now to prepare for a return to the workplace?

• Monitor legislation changes and public health guidelines for change;
• Undertake a risk assessment and update your COVID-19 Response Plan and Safety Statement;
• Continue to use social distancing and PPE; and
• Keep employees informed of any relevant health and safety measures.

For expert advice on all matters pertaining to a safe return to work for your employees, contact Shane Costelloe, or your usual Holmes contact.

Article by Shane Costelloe and Grace Lee.