With the rollout of the COVID-19 phased vaccination programme now underway across the Ireland and beyond, it looks like 2021 will herald a return to a somewhat normal life, and with it, a return to the workplace.
However, now is the time for employers to consider what impact the vaccine roll out will have on the return of their employees to the workplace. As employers have been reminded repeatedly during the pandemic, they have an obligation to their employees to provide a safe place of work and the vaccine rollout is likely to present both opportunities and challenges for employers in the provision of a safe place of work.
We highlight some issues that employers need to be aware of.
There is no requirement for employees to receive the vaccine
While employers can encourage employees to receive the vaccine, it is important to highlight that employers cannot mandate their employees to receive it. Rights such as bodily integrity, autonomy and privacy are protected by the Irish Constitution. This means that a person has the right to not have their body/person unjustifiably interfered with, which could include a medical intervention such as vaccination. Unless the Irish Government legislates that employees are required to receive the vaccine, which we believe is very unlikely, employers will not be able to require that their employees receive it.
Once vaccinations are eventually commenced for the general working demographic, employers will most likely be guided by the Irish Government to encourage their employees to receive the vaccine and perhaps to share information with their employees about the vaccine.
Providing a safe place of work
The Irish Government has provided detailed guidance on the return to work through the published “Work Safely Protocol”. The Protocol requires employers to continue to review and update their occupational health and safety risk assessments and safety statements in light of the COVID19 pandemic. Given the commencement of COVID19 vaccinations, employers will firstly need to conduct, or update, a risk assessment to determine how necessary it is for their business to have their employees vaccinated. Even if the employer assesses that it is necessary, it is highly unlikely this will in itself be an adequate justification for mandating employees receive the vaccine. Certain employees, for example, can be redeployed to carry out other work or can continue to work from home. However, the results of the risk assessment should be communicated to employees and the employer safety statement should be updated to outline that employees are strongly encouraged to receive the vaccine. Employees should be provided with information on how to obtain the vaccine once it becomes commercially available.
The employer will also need to prepare a risk assessment to take into account health and safety measures that may need to be taken in a workplace where some employees have had the vaccine and others have not. We expect that the Protocol will be updated to provide guidance on these measures.
Assessing if employees have received the vaccine
Whether or not it is permissible to ask employees to disclose they have received the vaccine or not will depend on public health guidance in place at the time.
Generally, employers need to have a strong justification for asking employees to disclose personal health information and the request needs to be necessary and proportionate. In simple terms, if an employee is required to travel to carry out their role, it may be considered necessary to ask if they have received the vaccine. This is particularly important where certain airlines or countries may restrict travel to persons who have received the vaccine, as is currently being speculated. On the other hand, it may not be necessary and proportionate to ask an employee who has always worked from home if they have received the vaccine.
Continuing to work from home
Some employees may wish to continue to work from home, even if public health guidelines are amended to permit a general return to the workplace. Employers should be considering at this point whether they wish to facilitate remote working after the pandemic has abated.
Employers may also wish to request that any employees who refuse to take the vaccine continue to work from home, if possible. However, the employer needs to consider what they will do if the employee does not consent to continuing to work from home and wants to return to the workplace.
Risk of discriminatory treatment
If an employee refuses to take the vaccine on grounds which are protected against discrimination, such as gender due to pregnancy concerns, religion or disability, they could take a discrimination claim against their employer. This may arise in instances where employees who have not received the vaccine are not permitted to return to the workplace but their colleagues who have received it are. Such employees could argue that they are being treated differently to their work colleagues because of their religious beliefs or gender, etc.
Alternatively an employee could resign and bring a constructive dismissal claim, arguing that they cannot reasonably continue in their employment if they are mandated to take the vaccine by the employer.
5 top tips
Employers need to consider how the rollout of the vaccine impacts their return to work strategy.
In summary, it is essential that employers:
Carry out or update a risk assessment to determine how necessary it is for their employees to have the vaccine. By way of example, if an employee works in healthcare or in meat processing, it is more likely that the risk assessment will determine that it is necessary that the employee has received the vaccine as opposed to an employee who works from home.
Update their current COVID19 response plan risk assessments and safety statements to account for employees having received the vaccine.
Keep employees informed of any relevant health & safety measures – there is no point in employers adapting comprehensive measures if these are not communicated clearly to employees.
Monitor public health guidance for information on how employees can receive the vaccine and any health and safety measures recommended for a safe return to work
Consider if working from home is to be facilitated going forward and update policies on working from home accordingly.
For expert advice on all matters pertaining to a safe return to work for your employees, contact a member of our Employment & Benefits team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.