27/01/2021

This briefing is intended as a follow on from our recent briefing on mandatory COVID-19 testing in the workplace, which is available here.

 

The current landscape

On 21 January 2021, the Minister for Health told Dáil Éireann that the Government is planning for every adult in Ireland to have received a COVID-19 vaccine by September 2021.

As of 24 January 2021, it was estimated that a total of 140,000 vaccine doses had been administered across Ireland.  There are currently two vaccines approved for use in the European Union: one developed by Pfizer and BioNTech, the other by Moderna.  A third vaccine, developed by AstraZeneca, is expected to be approved for use by the end of this month.

The Minister for Health has also commented that the COVID-19 Vaccine Allocation Strategy, which sets out a provisional priority list of groups for vaccination, is a “living document” that must be kept open for review.

 

The waiting game

As the rollout of COVID-19 vaccinations reaches more sections of the working population, employers should keep workplace risk assessments under constant review, and consider how to manage the inevitable (at least for a period) situation where only a proportion (albeit an ever increasing one) of their employees will be vaccinated against COVID-19.

Alternative infection control measures (such as physical distancing, hand hygiene, face coverings), and remote working unless an employee’s physical presence in the workplace is necessary, will be a feature of life for some time to come.  Employers should remain cognisant of the Work Safely Protocol (our briefing on which is available here), and ensure that their workplace risk assessments keep up with developments.

A communications strategy in relation to COVID-19 vaccination is something that employers may wish to consider at this time.  There is no legal issue with employers adopting a positive/encouraging position in relation to COVID-19 vaccinations, and communicating that to employees. In the current circumstances, the obvious rationale for employers encouraging their employees to be vaccinated is to reduce risks to the health and safety of employees by suppressing the spread of COVID-19 in the workplace.

 

Is there a legal basis on which employers can require employees to obtain a COVID-19 vaccine?

There is currently no general Government guidance or regulation compelling individuals to be vaccinated, or to agree to be vaccinated, against COVID-19.  As such, employers do not currently have any legal basis on which to mandate all employees to be vaccinated against COVID-19 although this may change in the future.

Legally, a mechanism exists under section 31 of the Health Acts 1947–2020 whereby the Minister for Health could introduce regulations making vaccination compulsory for the general public.  The Infectious Diseases (Amendment) Regulations 2020 added COVID-19 to the list of infectious diseases covered by the Health Acts 1947 – 2020.  However, it should also be noted that for over 70 years, every immunisation initiative in Ireland has operated on a voluntary basis.  The World Health Organisation has also cautioned governments against pursuing mandatory vaccination strategies.

The voluntary nature of vaccination initiatives in Ireland is a strong precedent, albeit only that – a precedent – which would need to be balanced against a highly infectious and potentially fatal virus.   There has been no indication to date that the Government intends to introduce legislation to provide for mandatory COVID-19 vaccination for the general public.  It remains to be seen as to whether or not regulations will be introduced whereby workers in high-risk areas will be required to be vaccinated.  In light of the unenumerated (implied) right to bodily integrity under Article 40.3° of the Constitution, it would not be unreasonable to expect that any Government proposal in this regard would be the subject of legal challenge.

From an employer’s perspective, an employee could (in the absence of any regulation mandating COVID-19 vaccination) rely on his/her constitutional right to bodily integrity to refuse to comply with a requirement from his/her employer to be vaccinated.  In addition, Article 8 of the European Convention on Human Rights includes a right to respect for private life, i.e. the right to live one’s life privately, without government interference.

 

Considerations for employers who decide to implement a mandatory vaccination requirement

In the UK, a plumbing company has announced that it will not hire new plumbers unless they have received a COVID-19 vaccine, and will not provide work to existing plumbers until they have been vaccinated, or until such time as a majority of the UK population has been vaccinated and the pandemic has been brought under control.

In Ireland, section 8 of the Safety Health and Welfare at Work Acts 2005–2014 impose general duties on employers to ensure the safety, health and welfare at work of their employees.  Those obligations include, at section 8(j), preparing and updating “…plans and procedures to be followed and measures to be taken in the case of an emergency”.

Notwithstanding that there is no legal basis for insisting that employees be vaccinated against COVID-19, employers may decide as a matter of company policy to introduce such a requirement, e.g. in order for employees to gain access to the workplace.  If such a decision is taken, there are a number of considerations to be borne in mind.

 

Compulsory Risk Assessment and the Offer of Vaccination

The Health and Safety Authority has published an updated Code of Practice for the Safety, Health and Welfare at Work (Biological Agents) Regulations 2013 and 2020 (the “2020 COP”) which came into effect on 24 November 2020.

The 2020 COP and the Safety, Health and Welfare at Work (Biological Agents) Regulations 2020 (the “Regulations”) apply to activities in a place of work where existing or potential – whether deliberate or incidental – exposure to a biological agent has occurred or may occur. The 2020 COP contains the list of classified biological agents at Schedule 1. SARS-CoV-2 (i.e. the causative agent of COVID-19) has been included in this list.

The Regulations require that a specific biological agents’ written risk assessment is completed, and that measures be put in place, to protect the health and safety of employees.

Helpfully, the 2020 COP sets out the role of the employer where a vaccination exists to protect against an identified biological agent in the workplace, the limits of any such vaccine in a workplace setting and the need to consider employees that are not vaccinated.  It stops short of mandating the vaccination of employees but it is worth noting that it lays down minimum requirements for the protection of workers.  Some of the key points in the 2020 COP are:

  • Where the risk assessment shows that there is a risk to the health and safety of employees due to working with or exposure to a biological agent for which an effective vaccine is available, the employer must offer vaccination, free of charge, to employees;
  • In offering vaccination, employers are obliged to advising employees of the benefits and drawbacks of both vaccination and non-vaccination;
  • Vaccination should only be seen as a useful supplement to the correct use of engineering controls, safe working procedures and instruction, information and training, and should not replace them; and
  • The risk assessment should consider non-responders to vaccination or employees who do not wish to avail of vaccination as additional control measures may be required.

 

Employees who refuse to be vaccinated

While most employees are likely to be willing to be vaccinated, it is possible that some employees may elect, for medical or other reasons, not to receive a vaccine when invited by the HSE to do so, such as e.g. invoking their right to bodily integrity (discussed above), vaccine-hesitancy among parts of the global population, concerns (well-founded or otherwise) about side effects of a vaccine, and/or anti-vaccination beliefs.

In this context, it is important that employers remember that there may be valid reasons for an employee’s decision not to receive a COVID-19 vaccine and to address these on a case by case basis.

The Employment Equality Acts 1998-2015 should be borne in mind by an employer when considering any refusal to be vaccinated on the following, illustrative, grounds:

  • Disability: an employee may have a disability which informs their decision not to receive a COVID-19 vaccine. Disability is very broadly defined for the purposes of the Employment Equality Acts, and is one of the nine grounds in respect of which the Employment Equality Acts protect employees from discrimination;
  • Religion: a decision not to receive a COVID-19 vaccine may be based on religious grounds; religion is another ground of discrimination prohibited under the Employment Equality Acts.

Where an employee communicates a decision not to be vaccinated, the employer should take steps to engage with the employee to understand their unwillingness to be vaccinated.  Where that unwillingness cannot be overcome, the employer could consider redeployment and/or remote working for a period, depending on the circumstances of the employee and the nature of his/her role. It may be the case that some roles have been identified as part of a risk assessment as unsafe to carry out without the employee being vaccinated. In such cases, if redeployment or remote working is not a feasible option, it may be that an employer will need to consider termination of the employment contract on redundancy or capability grounds in line with fair procedures, depending on the circumstances.

We would caution against initiating disciplinary action against an employee for refusing (without cause) to be vaccinated, without first exploring all feasible alternatives and being satisfied that there are no other options available to the employer.

 

Employee consultation
Where there is a union presence in the workplace, it would be prudent (and in some cases, may be required by agreements with unions) to consult with unions before any requirement for employees to be vaccinated against COVID-19 is implemented.

Even where there is no union presence, employers should consider consulting with employees or employee representative groups prior to implementing any mandatory vaccination requirement.

 

Data protection

As mass vaccination continues throughout 2021, employers will naturally want to keep informed of those employees who have been invited to, and who have received, a vaccine.  In this context, it is important to remember that data relating to an employee’s receipt of a COVID-19 vaccination (whether confirmation of vaccination, or proof of vaccination) will constitute a special category of data under the GDPR, insofar as it pertains to an employee’s health.

Further, surveying employees on their willingness or unwillingness to be vaccinated will likely involve the processing of special categories of data, particularly if employees cite health reasons or religious beliefs as their reason for refusing the vaccine.

Employers will need to identify a legal basis for the processing of such personal data under Article 6 of the GDPR, and an exemption for the processing of this data under Article 9 of the GDPR. Establishing appropriate legal grounds for such processing will be particularly challenging in the absence of a clear legislative mandate to require employees to be vaccinated.

A data protection impact assessment will be required where special categories of personal data are processed on a large scale, and measures should be adopted to mitigate all relevant risks.

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