To be Vaccinated or not to be Vaccinated?

To be Vaccinated or not to be Vaccinated?

Introduction

Employers grappled with significant challenges in 2020 and 2021 both moving operations remotely and implementing robust health and safety measures.  Employers are now facing a further challenge around the vaccination status of employees.  As there is no legal basis for mandatory vaccination, employers cannot force employees to be vaccinated.  The issue then arising is how employers should manage employees who do not wish to receive a vaccine and/or booster.  We set out below the primary considerations for employers when managing employees in those circumstances.

 

Personal Rights

Article 40.3 of the Irish Constitution provides for a right to bodily integrity.  This means that a person has a right not to have his/her body or person unjustifiably interfered with.  Article 8 of the European Convention on Human Rights provides a right to respect for private and family life.  Any attempt by employers to enforce mandatory vaccination of employees in the workplace will fall foul of these fundamental rights and expose the employer to potential litigation.

 

Equality

The Employment Equality Acts 1998 – 2015 prohibit discrimination on nine grounds, namely, gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community.  Employers must ensure that employees refusing to be vaccinated on any of these grounds are not treated less favourably than employees who agree to be vaccinated.  An employee who refuses vaccination due to pregnancy is considered to be refusing on gender grounds.  An employee who refuses vaccination due to a medical condition is considered to be refusing on disability grounds..  An employer treating an employee who refuses to be vaccinated on any of the nine grounds less favourably than employees who have been vaccinated will be exposed to an equality claim.

 

Health and Safety

Section 27 of the Safety, Health and Welfare at Work Act 2005 protects employees against dismissal and penalisation as a result of raising complaints regarding health and safety in the workplace.  An employer must not penalise employees who have communicated their decision not to be vaccinated as Section 27 will provide another form of legal redress for an employee in those circumstances.

 

Data Protection and GDPR

The issue of whether employers can legally hold and process data regarding the vaccination status of employees is tricky, particularly in the absence of clear guidelines from public health on the matter.  The Data Protection Commission has indicated that there is currently “no clear legal basis” for processing such employee data and to do so is “likely to represent unnecessary and excessive data collection”.  This position may change depending on public health advice.

The Data Protection Commissioner has also indicated that there may be certain categories of special workers where vaccination status is required and it is likely that an employer will be in a position to lawfully process vaccine data on the basis of necessity, for example healthcare workers.  However, this is based on relevant sector specific guidance.  The Data Protection Commission has used the specific example of the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners which states that practitioners “should be vaccinated against common communicable diseases.”

Legal advice should be obtained by employers before implementing any workplace policies on this issue.

 

Conclusion

The big question is how an employer best navigates its way forward during rolling waves of outbreaks and workplace restrictions and vaccine and booster rollouts.

A good starting point is to carry out a fresh risk assessment taking into account public health advice and prepare an updated safety statement in line with Sections 19 and 20 of the Safety, Health and Welfare at Work Act 2005.  If this assessment identifies risks to employees who have not been vaccinated, or to their colleagues, then these risks must be addressed.  However, legal advice should always be sought before taking any steps to address these risks in order to avoid exposure to any of the grounds for litigation set out above.

 

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees as a percentage or proportion of any award or settlement.

 

Cara Walsh
Partner
Michelle Loughnane
Senior Associate