Employees & Covid-19 vaccine – considerations for employers

Michelle McDonagh, Chamber Partner Manager, Adare Human Resource Management

With the roll-out of the Covid-19 vaccine booster now underway and the emergency of another new variant, it is worth reminding employers on what they can and cannot do when it comes to vaccines and their employees.

Provide a safe workplace

Under the Safety, Health and Welfare at Work Act, it is the responsibility of the employer to provide a safe working environment for employees, so it is not unreasonable that an employer would want their workforce vaccinated. The Work Safely Protocol was introduced in November 2020 (an enhanced version of the original Return to Work Protocols launched in May 2020) and it is essential that all employers ensure they are fully implemented if they intend to have employees returning to the workplace, subject to the restriction levels in force. However, while it is highly recommended that everyone receives the Covid-19 vaccine, it is not mandatory in Ireland and a person’s fundamental right to bodily integrity is covered under the Irish Constitution.

This leaves employers in a potentially difficult situation; while seeking to ensure a safe workplace, they cannot force employees to get vaccinated or get the booster if the employee has voluntarily disclosed that they received the initial vaccine. And while the Government and public health advice continues to encourage that people get vaccinated, there remains an individual’s right to decide. So, what are the main considerations for employers?

Assess the risk

Under the Act, an employer must carry out a risk assessment of the workplace and any potential risks that have been identified must be addressed and The Work Safely Protocol should be adhered to in all workplaces. It is clear that vaccinated people can still become infected with Covid-19 and spread it, so it is important for employers to ensure that all employees follow the safety protocols that are put in place, whether they have been vaccinated or not.

Equally, employees have responsibilities under the Act to work with their employer to protect themselves and their colleagues from potential risks; this could reasonably include the risk of Covid-19 infection. Employees must adhere to all guidelines and protocols implemented by their employers.

Communication is key; while employers cannot force their employees to get vaccinated, they can communicate out the advices from government and the HSE.

Avoid potential discrimination

Employees have protections under the Employment Equality Acts 1998 – 2015 from discrimination on nine grounds, including religion, age and disability. An employee may decide not to get the vaccine for a number of reasons that would come under these specific grounds, such as a medical condition or their religious beliefs. Any mandate by an employer that employees need to take the vaccine could constitute discrimination under the Act.

Managing the risk with employees who don’t get vaccinated

Understanding an employees’ concerns is important and finding solutions that meet the business needs without infringing on employee rights is crucial in managing an employees’ integration back into the workplace. Extending the term of remote working may be an option but this may not be feasible for all sectors or may cause other unintended consequences. In any case, employers need to think carefully about any action they take and the potential legal consequences associated with these actions.

Data protection concerns

As part of assessing the risks, employers will naturally want to know who has or hasn’t been vaccinated before getting employees back to the workplace. In order to process personal data, there must be a legal basis to do so, the grounds for which are set out in Article 6 of the General Data Protection Regulations. While employees are not obliged to provide personal medical information in the main, employers may seek vaccination information on the basis that they are meeting their legal obligations under the Safety, Health and Welfare at Work Acts. Realistically it will be up to individual employees to volunteer this type of information to their employer.

If employees volunteer information about whether or not they have been vaccinated, employers should take care not to disclose to other employees who have or have not been vaccinated. the vaccine.

Conclusion

Following the most recent advice from the Government to return to remote working, it is fair to say that the vast majority of the working population won’t be returning to the workplace the new year. However, planning and communication are key to ensuring a smooth transition when the time comes.

Ensuring health and safety policies and procedures are updated, robust risks assessments are carried out and adhering to the Work Safely Protocol are key to getting people back to the workplace.

Be mindful and respectful of an individual’s right not to get vaccinated or receive the booster dose and plan accordingly by offering other working arrangements where appropriate. And avoid a situation that may constitute discrimination, leading to legal issues.

Adare Human Resource Management is a team of expert-led Employment Law, Industrial Relations and best practice Human Resource Management consultants. For more information go to www.adarehrm.ie or call (01) 561 3594.