With the roll out of the COVID-19 vaccine across the country, it is important for employers to consider their role in the process and the potential impact for their workforce. Here are the answers to some of the questions which might arise in the coming months.
Can an employer require its employees to be vaccinated?
The short answer is no. There is high legal risk in mandating that employees 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.
If there are people 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.
There is nothing stopping an employer from actively encourage its employees to receive the vaccine and it may even facilitate this in the workplace by arranging a health professional to administer the vaccine at a time that suits the employee.
At present, we are in a state of flux and there is a lot of unanswered questions which may, over time, be legislated for. For now, it is an area that must be kept under review by all employers.
Can an employer ask an employee if they have been vaccinated?
Technically no, an employer cannot ask an employee if they have or have not been vaccinated in the same way that 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. 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. However, there is nothing stopping an employee from volunteering this information up to their employer.
We expect that the Data Protection Commissioner will issue guidance at some stage on what information an employer can ask for and collect in respect of is employees and the COVID-19 vaccine. Until such time as further guidance is issued, it is recommended that employers only collect the minimum amount of data that is necessary to implement COVID-19 measures in the workplace.
Can an employer discipline or dismiss an employee for not disclosing that they are vaccinated or for refusing to be vaccinated?
Disciplining or dismissing an employee for not getting the COVID-19 vaccine or for not disclosing if they have had the vaccine would leave the employer exposed to legal action being taken by the employee against the employer.
Where an employee is not vaccinated, for whatever reason, the employer must explore all reasonable alternatives for that employee to continue to work safely, such as a working from home arrangement.
Do employees have a right to know if their colleagues have been vaccinated?
No, employees do not have a right to know if their colleagues have been vaccinated and will be at the mercy of their colleagues in this regard. An employee cannot be treated adversely, by their colleagues or employer, for not having the vaccine.
How do I provide a safe place to work in circumstances where some employees are not vaccinated?
It is important for employers to always follow public health guidance. The Government issued The Work Safely Protocol (November 2020) which provides information to employers on measures that need to be implemented to ensure that workplaces can operate safely. We expect that there will be an update to this protocol in light of the COVID-19 vaccine roll out.
What must employers do:
- Monitor legislation changes and public health guidelines for changes; and
- Undertake a risk assessment and update COVID-19 Response Plan and Safety Statement.
A version of this article first appeared in the Business Post on 14 February 2021.