COVID-19 Employer Alert: Vaccinations and the Return to the Workplace
With the Government indicating that a return to the office may be on the cards for some workers as early as August, now is a good time for employers to consider some of the tricky issues which might arise as they reopen workplaces to employees.
1. Can employers require employees to be vaccinated?
No, it is not permissible for employers to require employees to get a vaccine.
There is currently no Government guidance or regulation compelling individuals to take the vaccine in Ireland with no indication that this position will change in the future. The Work Safely Protocol states that “the decision to get a vaccination against Covid-19 is voluntary and workers will therefore make their own individual decisions in this regard.” As a result, employers have no legal basis to compel their employees to be vaccinated against Covid-19.
Recently, the UK Government indicated their intention to introduce mandatory vaccinations for some workers. There is currently no indication that the Irish Government will take a similar approach.
2. Does the position change if an employee needs the vaccine to perform their role?
This question commonly arises in the context of employees who work in healthcare or pharmaceutical environments, on client premises, or who regularly travel as part of their work. The general position does not change: based on current guidance, it is not permissible for employers to require employees to get a vaccine.
While it is in an employer’s interest to ensure that employees can carry out the core duties of their role, we anticipate that Irish bodies of competent jurisdiction (including the Workplace Relations Commission, the Labour Court and the civil courts) will be reluctant to consider that taking a vaccine is a “requirement” of the role. This is particularly the case where work could be performed remotely, or where the consequence of not having a vaccine is that an employee must enter into quarantine upon entry to a country, as opposed to not being permitted entry at all.
In some industries, it may be important for certain employees to be vaccinated based on their job description/role, e.g. lab workers. An employer may need to carry out a written risk assessment under the Code of Practice for the Safety, Health and Welfare at Work (Biological Agents) Regulations 2013 and 2020 (the “2020 COP”). However, the Work Safely Protocol expressly provides that a worker does not have to accept the offer of a vaccination following a 2020 COP risk assessment.
Advice issued by HIQA to NPHET in April 2021 indicates that the introduction of a mandatory vaccination requirement would be considered the most intrusive intervention, and that other, less intrusive, interventions may be available such as one-to-one conversations, ongoing testing, use of PPE and redeployment.
3. Can employers ask employees to confirm if they have taken the vaccine and keep a list of those who have done so?
Employers are not prohibited from asking this question, but they would need to identify a legal basis under the GDPR to collect any information relating to their employee’s vaccination status.
The absence of specific legislation in this area implies that most employers would not be able to rely on Article 6(1)(c) GDPR (legal obligation) or Article 6(1)(e) GDPR (public interest) in processing personal data relating to staff’s vaccination status. As with all employment-related processing activities, relying on consent would also be fraught with difficulty, as it would be unlikely to be “freely given” where there is an inherent power imbalance between the employer and employee.
It may be possible to assert that collecting this information is necessary to achieve the employer’s ‘legitimate interests’ pursuant to Article 6(1)(f) GDPR. However, the employer would need to show that requesting and processing this information is both necessary and proportionate to achieve its purposes by reference to the specific circumstances in the workplace, and that its interests (in promoting the health and safety of its workforce or otherwise) outweighs the employee’s right for such data not to be processed. This is a high threshold to meet.
Additionally, it would be very difficult to identify an appropriate exemption under Article 9 GDPR, insofar as this activity would involve the processing of health data.
Prior to operationalising any activity in this area, the employer would need to conduct a data protection impact assessment (DPIA) in advance in accordance with Article 35 GDPR. They would also need to ensure high levels of transparency, particularly around the types of data being processed, the purposes of the processing, and the implications for data subjects who do and who do not participate.
4. Can employers incentivise employees to get vaccinated, for example by providing a reward to employees for taking the vaccine?
Yes, employers may take a pro-vaccination stance and encourage or incentivise employees to get vaccinated, provided all employees are treated equally and data protection obligations are complied with. Employers have an obligation to protect the safety, health and welfare of themselves, their customers and their employees. The Work Safely Protocol provides that employers, working together with workers and their representatives, may wish to provide advice and information to allow employees to make an informed decision. Incentive programmes should be reviewed to ensure they are compliant with equality and data protection legislation.
5. Can a refusal to get vaccinated be sanctioned, e.g. by refusing an employee access to the office or stopping their pay or dismissal?
Irish bodies of competent jurisdiction may be slow to consider a decision not to take the vaccine as “unreasonable”, or accept an analysis that taking a vaccine is a “requirement” of a role.
In the event that an employee refuses to take the vaccine, it is recommended that the employer engages with the employee and considers alternative measures such as redeployment to another role. The employer should also bear in mind that there may be different reasons why an employee chooses to refuse the vaccine and will need to consider its obligations under the Employment Equality Acts (i.e. in terms of reasonable accommodation).
If, having carried out a specific biological agent’s written risk assessment in accordance with the 2020 COP, it is determined that if someone is not vaccinated they would not be regarded as being in a safe position to perform certain work tasks, the employer should engage with the employee and consider redeploying them to another role, requiring them to comply with other health and safety measures or allowing them to work remotely etc. while maintaining them on full pay.
If no accommodations can be made for an employee and redeployment is not a feasible option, the employer may need to consider whether there is a sufficient basis to dismiss the employee on grounds of capability, or on the basis that the employee is unable to discharge the core functions of their role. An internal process would have to be followed through before a decision to dismiss on this basis could be followed.
6. Do employers have to accommodate people who can’t get the vaccine for certain reasons (e.g. medical reasons, religious beliefs)?
If permitted in line with public health advice, all employees should be allowed to attend the office to work regardless of whether they have received the vaccine or not and additional control measures (e.g. PPE and social distancing) considered.
Restricting office returns to certain groups may involve the disclosure of personal data – i.e. if people are only allowed to return to the office if they have been vaccinated, it will quickly become clear who has been vaccinated and who has not, so data protection obligations would need to be considered.
If a role is identified as high risk in terms of exposure to COVID-19, and an employee is not vaccinated, redeployment to another role can also be considered. However, the employer should bear in mind its obligations under the Employment Equality Acts 1998-2015 when dealing with an employee who is unable/unwilling to be vaccinated. For example, if the vaccine is not suitable for an individual due to a medical condition, this may trigger an obligation on the employer to provide reasonable accommodation to this employee, such as allowing the employee to continue to work from home while the other employees return to the office, or changes to the role to reduce risk of exposure to COVID-19. The employer should also consider other potential grounds of discrimination where an employee is unable/declines to be vaccinated, for example religious discrimination if the employee declines the vaccine on religious grounds.
7. Does an employee have a right to refuse to work alongside another person who has not been vaccinated?
An employee could assert that working physically alongside unvaccinated persons places them in “serious and imminent danger”. Under the Safety, Health and Welfare at Work Act 2005, an employee cannot be penalised for leaving work or taking measures to protect themselves from that danger.
“Serious and imminent danger” is determined from the perspective of the employee and depends on the personal circumstances of the employee and the workplace. An employer can take steps to ensure employees cannot assert they are in “serious and imminent danger” by taking reasonable precautions to protect employees in line with the Government’s Work Safely Protocol, such as allowing employees to work from home, implementing Covid-19 safety measures (including maintaining social distancing in the workplace, the use of antigen tests etc) and considering redeployment options.
In any event, it would be difficult to justify the disclosure of an employee’s vaccination status to other staff from a data protection perspective.
8. Can a private employer carry out vaccinations at their workplace?
No. Covid-19 vaccines are currently available only through State healthcare channels such as the Health Service Executive and are not available through private sources.
9. If employees take time off work to get the vaccine, do I need to pay them?
There is no prescribed approach – however, as an incentive to encourage employees to get the vaccine, many employers are advising employees that they can attend an appointment to receive the vaccine during working hours without losing their entitlement to pay.
10. What steps can employers take now to prepare for a return to the workplace?
Employers should review their current Covid-19 response plans in light of the Work Safely Protocol recently updated on 14 May 2021 as well as current public health advice and identify:
- key decision makers and decision making partners;
- business imperatives and their impact on the Covid-19 response plan (e.g. do certain areas of the business require a different approach to others);
- where updates to the Covid-19 response plan can be made; and
- potential matters that need specific attention (e.g. if an employee is already aware that an individual has requested specific accommodation)
Employers should ensure that return to work plans are compliant from a health and safety, data protection and equality perspective. Any proposed measures to encourage vaccination take up or address persons who refuse to take the vaccine should be reviewed to ensure compliance with an employer’s obligations to provide a safe workplace, while balancing this against an employee’s right to choose whether they will avail of the vaccine.