Ireland: Vaccination for Covid-19 – can employers require their employees to be vaccinated?
21 September 2021
With approximately 90% of the adult population now fully vaccinated, many employers in Ireland will understandably be eager to know what exactly they can and cannot do in respect of employees and their vaccination status. This article explores some of the legal issues.
Can employers provide the vaccination to their employees?
The vaccine is not commercially available yet so it would not be possible for employers to provide the vaccination to their employees. Given that such a large proportion of the adult population is vaccinated, this is unlikely to arise at the moment, but the situation may change in the future if booster doses are needed.
Can employers ask if employees are vaccinated?
No, they cannot.
The Data Protection Commission (DPC) in Ireland has issued detailed guidance stating that there is no legal basis for collection and processing of vaccine status data, unless public health guidance changes to make vaccination a necessary workplace measure for the prevention of Covid-19. There may be some very limited exceptions to this (e.g. frontline healthcare service workers).
Should employers be encouraging the vaccine?
Given that the Safety, Health and Welfare at Work Act 2005 (SHWWA) obliges employers to carry out a risk assessment to identify health and safety risks to people in their place of work, and then take steps to remove or minimise any risks identified, it would be fair to say that employers should at the very least be encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace. According to the Work Safely Protocol (the Protocol), which is the return to the workplace guidance published by the Irish government, the decision to get a vaccination against Covid-19 is voluntary. Employees will therefore make their own individual decisions about whether to get vaccinated. However, employers working together with their employees and their representatives, may wish to provide advice and information on the vaccination programme so that employees have the necessary information to make an informed decision.
Should employers pay for the vaccine?
This is not currently an option as the vaccine is not commercially available.
Many employers are likely to be happy to pay for the Covid-19 vaccination or any future booster vaccination once it becomes available, in a similar way that large numbers of them do for flu vaccinations.
How will a vaccine impact an employer’s risk assessment?
In view of the right of individuals to refuse vaccination, risk assessments will need to examine whether additional measures can be put in place to ensure the safety of all employees without assuming that the entire workforce has been vaccinated.
This will be of greater importance in certain settings (such as health and care) where Covid-19 is a notifiable disease under the Infectious Diseases Regulations 1981 (as amended) and choosing not to have the vaccination could put non-vaccinated patients at risk.
Can employers make it a mandatory health & safety requirement for employees to be vaccinated?
Based on current guidance, it is not permissible for employers to require employees to get a vaccine. It is also not permissible or for vaccination to be a condition for returning to the office, or a requirement for employment. The Protocol specifically states that whether to be vaccinated or not is an individual decision.
As mentioned above, the SHWWA obliges employers to identify and reduce workplace risks as part of its risk assessment. Employers should arrange a health and safety risk assessment carried out by a health and safety professional to establish what measures are required to allow employees to return safely to the office. They may consider whether or not vaccination is a necessary requirement. However, a vaccination requirement is likely only to apply in very limited circumstances such as a frontline healthcare setting and it is unlikely that this would be justifiable in an office workplace setting.
There is no evidence to suggest that the government will introduce a mandatory vaccination programme (or that it is needed). However, following the recent guidance issued by the DPC stating that vaccination may be considered as a “necessary safety measure” in certain situations, including frontline health services, the HSE (the largest employer of healthcare workers in Ireland) have been permitted to seek information about employee’s vaccination status as part of assessing risk to patients and other staff.
What if the employee has religious or other objections?
Although there has been a large uptake of vaccinations in Ireland, there may still be employees that are unvaccinated due to religious beliefs. The Employment Equality Acts 1998-2015 (EEA) protect employees against discrimination on grounds of religion. A small number of religious groups disapprove of vaccinations altogether. Most religions do not disagree with vaccination in principle, but as a result of other beliefs in those religions, followers may refuse some types of vaccination because of their ingredients (e.g. pork gelatine or egg). It is worth noting that none of the vaccinations that have been rolled out in Ireland to date contain any animal-derived ingredients.
Vegans may also disagree with vaccinations that contain animal-based ingredients or have been tested on animals. Ethical veganism has been found by a UK Employment Tribunal to amount to a belief capable of being protected under the UK’s equality legislation. In Ireland, however, there is no general “belief” ground under the EEA, so protection under Irish equality law is unlikely to extend to cover non-religious beliefs such as ethical veganism.
People with religious beliefs against the vaccination may be protected under the EEA. Mandatory vaccination policies are not permitted and would likely to be held to be indirectly discriminatory.
What if the employee has medical reasons not to be vaccinated?
Employees with certain medical conditions have been advised against or have chosen not to have the vaccine. Such employees may have a disability for the purposes of the EEA. The definition is so broad that most medical conditions are likely to fall within it.
A blanket mandatory vaccination policy could therefore amount to unlawful indirect discrimination. Indirect discrimination occurs when an apparently neutral policy or practice adversely affects a particular grouping of people with a protected characteristic, such as those with disabilities.
What about pregnant employees?
There has been conflicting advice in this area, but the most recent advice for pregnant women has changed and vaccination is now recommended, albeit that since 3 September, the HSE is only offering the Pfizer.
Due to the conflicts in guidance since the introduction of the vaccination programme, some women may be hesitant about accepting vaccination. So employers should consider if they want to make exceptions for employees who fall within this category.
Can I make vaccination a condition of returning to the office?
No – while many employers wish to introduce such a policy to protect the health and safety of their employee population, such a policy would carry risk in regard to complaints by employees for breach of their data protection rights, and the employment law risks outlined below. Employers should follow public health guidance, and update their risk assessments to ascertain other ways in which the workplace (or working patterns) may need to be altered to protect health and safety in the workplace.
Discrimination risks: There is significant risk of discrimination claims arising if employees are treated differently based on vaccination status. As discussed above, discrimination could arise on grounds of disability for employees unable to (or choosing not to) receive vaccination on medical grounds or on grounds of religion if a certain religious group disapproves of vaccinations.
Constructive dismissal: Refusing an unvaccinated employee access to the office and requiring them to work from home indefinitely may amount to a significant breach of their contract or unreasonable conduct by the employer, entitling the employee to resign and consider themselves unfairly dismissed. However, generally employees would be expected to raise a grievance before resigning.
Trade Dispute: Employees could bring industrial relations claims to the Workplace Relations Commission or Labour Court in respect of the policy. The recommendations in trade disputes are not legally binding but could lead to adverse publicity and employee relations issues if not followed by employers.
Grievances: There is also a strong likelihood of grievances from employees where they feel they are being unfairly restricted from attending the office.
What does this mean for employers?
Employers will need to consider vaccination as part of their risk assessment and should be encouraging employees to get vaccinated
Employers should be careful not to judge or stereotype employees. Just because an employee is part of a religious group does not automatically mean that they have refused to be vaccinated, so this should not be assumed. Equally, employers should not assume that the reason for someone’s refusal is what the employer perceives their religion to be.
The Irish government announced on 31 August that attendance at work for specific business requirements may commence on a phased and staggered attendance basis from 20 September. However, we still await an updated work safely protocol or any updated guidance on how the return to the workplace should be managed.
For now, the position is clear - employers should not be making vaccination a condition for the return to the office or asking employees for any information in respect of their vaccination status.
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