Employers will face dilemmas never experienced before as attention turns to the Covid-19 vaccination programme.
While widespread vaccination of the workforce might be desirable, it is highly unlikely that employers will be able to insist that all of their employees are vaccinated. Any employer who issues a mandatory instruction to an employee to be vaccinated is in unchartered waters and could be exposed to legal claims and employee relations issues.
For employees who do not wish to be vaccinated, an employer might wish to consider alternative working arrangements, such as remote working in the short term. Redeployment might also be considered where vaccination is considered a practical prerequisite to working in a high-risk environment such as in healthcare.
The Employment Equality Acts provide for protection from discrimination on nine protected grounds, including disability and religion. A disability may preclude an employee from receiving the vaccine or inform their reasons for refusing it. Any requirement by an employer that an employee receive the vaccine could potentially amount to discrimination on the grounds of disability. Likewise, a requirement that an employee is vaccinated could also constitute discrimination on religious grounds, where an unwillingness to have the vaccine stems from an employee’s religious belief.
In exceptional cases, an employer may wish to take disciplinary action or potentially even dismiss an employee who refuses to be vaccinated. However, there would be considerable legal risks associated with this course of action and this option should only be considered as a last resort.
Legal obligations – Data protection & Health & Safety
Another challenge that employers are likely to face is the data protection considerations that arise when it comes to vaccination-related data. Many employers will be understandably keen to know which of their employees have obtained the vaccine and when, and perhaps more importantly who has not and why not.
In practice, most employers will likely seek to rely on such processing being necessary to comply with their legal obligation to ensure the health and safety of employees under the Safety, Health and Welfare at Work Act 2005. The robustness of this position is, however, open to challenge.
It remains to be seen whether the Data Protection Commission (DPC) will accept that vaccination-related data can be lawfully processed by all employers on any of the permitted grounds under the GDPR. Last year, the DPC published a guidance note on mandatory temperature testing by employers that suggested that temperature testing should be the exception rather than the norm.
While the rollout of the vaccine throughout the working population will take some time, every employer is at some point this year going to have to consider the impact of the vaccination programme on their employees and the knock-on effects for the safety of their workplace. For that reason, employers should start planning now and prepare a checklist of issues that need to be considered.
It is also worth considering that the vaccination programme is unlikely to be a once-off event. Booster doses may be needed in the future and employers should therefore plan for Covid-19 vaccination programmes becoming a regular feature of the working year.
In the absence of public health advice or advice from the Health & Safety Authority having yet been published on the implications of the national vaccination programme for employers, it is probably still too early for employers to implement vaccination policies at this time.
However, it is certainly time for employers to put this issue on their agenda for 2021 and be vigilant to relevant public health updates and Government guidance. All going well, employers should soon have an idea as to when their workforce is likely to be vaccinated. Once they do they will be in a much better position to implement vaccination policies and communicate with their workforce.
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