Covid-19 Vaccinations & The Workplace
Vaccines are arriving slowly but surely in Ireland and many questions are arising regarding what they will mean for the country. One such query we have had is whether employers will be able to require their employees to be vaccinated?
There are good reasons why we do not allow employers to determine what employees do with their own health, however employers are also bound to protect the safety, health and welfare of employees in the workplace. This note looks at the conflict that will arise in this area and how you might avoid falling into either trap.
Right to bodily integrity
It has been established in Irish Constitutional Law that people have a right to bodily integrity. This mean that people have a general right not to have their body interfered with. There have been some decisions which questioned just how far this right goes however in 2018 the Supreme Court held that bodily integrity is part of a our “essential dignity as human beings”. As such, where an employer requires their employees to get vaccinated, they risk intruding on the employee’s personal rights. A further risk is that a vaccine requirement could be determined to be discrimination against an employee for religious reasons or on disability grounds (as certain categories of people are not recommended to receive the vaccine yet).
Safety, Health and Welfare at Work Act 2005
On the other side of the matter, employers will be conscious of their obligations to employees under the Safety, Health and Welfare at Work Act 2005 and under the common law principle of negligence.
This Act requires employers conduct risk assessments and prepare safety statement which are specific to their workplace. In light of the new risks posed by Covid-19, the government has issues updated the Code of Practice on Safety, Health and Welfare at Work (available here) to include guidance for employers on the best practices to minimise risk to employees.
A further factor that employers need to keep in mind is that employee health information usually falls under a special category of personal data and as such the GDPR requires a number of extra protections be put in place before it can be processed. In practice this means you should not keep a list of vaccinated employees until you have identified a legal basis for collecting, storing, and otherwise using that information.
What are the “Do’s and Don’ts” for Employers?
- Do encourage employees to take the vaccine. This could be done by providing time off to receive the vaccine.
- Don’t punish employees for not taking the vaccine. As set out above, punishment could lead to a claim for discrimination on religious or disability grounds.
- Do conduct risk assessments of the workplace and minimise risk by following the best practice as set out but the Code of Practice on Safety, Health and Welfare at Work.
- Don’t rush to open for business as usual. Follow the proper steps by conducting risk assessments on what returning to work will mean for your employees and how those risks can be minimised.
- Do continue to encourage employees to work from home, where possible. This is one of the easiest methods to ensure that employees are not at risk from contracting Covid-19 from the workplace.
- Don’t ask employees whether they have received the vaccine. As outlined above, health data is a special category of personal data and requires strict protocol to be followed before it can be processed.
Employers are facing a difficult couple of months ahead as employees who are vaccinated will be expected to return to the workplace and some vaccine hesitant employees may emerge in their workforce. The key message to take from the above is that any decision with regard to employees needs to follow a considered process.
For example, where your business is in the health sector, it may be possible to take a stronger stance on employees who choose not to be vaccinated, especially where allowing them to work normally would place clients/patients at risk. Depending on the circumstances this could involve moving the employees off site and away from the main workplace. In contrast, an IT company which can easily work remotely is unlikely to be able to force employees to be vaccinated by requiring them to attend the office to work.
For information or advice on any Employment Law matter, please do not hesitate to contact Brendan Dillon or Conor White on 01 2960666.