Cliff Taylor: What will your office look like when you go back?

A London plumbing company recently advertised for new staff on a “no jab, no job” policy. But can your employer insist you are vaccinated, or oblige you to get tested as you enter the workplace?

Employers in the UK – like the plumber – have drawn back a bit from initial bullish positions and legal and employment exports here say that a complicated new situation is now emerging in workplaces in relation to vaccination and testing.

1. The background

We are seeing the start of a new debate about how workplaces will be run post-Covid, or indeed with Covid-19 if the virus becomes endemic.

Employers want to provide safe workplaces – and for some considerable time the need for social distancing, maintaining records of who is in work for contract tracing, having a policy if someone is sick and providing sanitisers will continue.

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But a new debate is opening up and it has surfaced in the UK, which is ahead of most of the rest of Europe in vaccination numbers. As well as the plumber, nursing home operator Barchester has said it is encouraging existing staff who are reticent to get vaccinated to get the jab and requiring new staff to have it unless there is a medical reason that they can’t.

The UK government has said it is “up to business” to decide what to do, but is reportedly nervous of any sign that it is forcing vaccines on people or discriminating.

The issue briefly raised its head here when HSE boss Paul Reid said reports that some nursing home staff were not taking vaccines was "inexcusable" and suggested that those who didn't might in some cases have to be reallocated to different roles.

As vaccines are rolled out here and businesses start to plan to have staff back to the office – at least for some of the time – the issue of workplace safety and employee rights are going to become front and centre. And it is clear that this will go on for quite some time after the vaccination programme is finished.

2. Can employers insist you get the jab?

Probably not, even in the case of a new employment contract ,is the general consensus among legal and employment experts. There may be exceptions. As there is no case law here, either in the court or the Workplace Relations Commission, it is impossible to be sure about how every case would be dealt with.

Jennifer Cashman, employment law partner at Ronan Daly Jermyn solicitors, points out that the vaccination programme is a public health programme and not mandatory, therefore employers cannot insist that employers have the jab.

Doing so is likely to face challenge under the constitutional right to bodily integrity , GDPR laws and the risk of discrimination. She points out that at this stage even the HSE is not insisting that its staff are vaccinated.

Employers can encourage staff to be vaccinated and provide them with relevant information, but cannot insist that they do so, according to Cashman.

They can also provide staff with paid leave to get the vaccine – given that unlike a dentral appointnment they may not be able to choose a time – and may also need to flexible if people feel under the weather when they get the jab.

Furthermore, she warns that employers are not likely to be able to even ask staff if they have been vaccinated – again due to GDPR and discrimination concerns.

It remains to be seen how this issue develops in areas like healthcare and how employers deal with the possible redeployment of staff who tell them they are not vaccinated.

This brings new challenges for workplace risk assessments.

A number of large employer in the healthcare sector concurred that their advice was that GDRP rules would make any oversight of staff vaccination very difficult.

This was not a major immediate issue, they said as currently the assumption was all incoming patients had Covid-19 and staff were dressed in PPE. However in future as vaccines rolled out it was likely to become an issue.

One employer said they believed they would be within their rights to move a non-vaccinated staff member away from a patient setting if a risk assessment showed this was necessary.

As well as employers, colleagues do not have a right to know whether you are vaccinated. This could become a contentious issue in some firms, particularly if research shows that the vaccines generally prevent people transmitting the virus to others, as well as stopping them getting sick themselves.

More than seven out of ten employees surveyed in a recent Laya Healthcare survey believed that staff should be vaccinated before returning to work, so it could become contentious if some people do not confirm their status and colleagues do not want to work with them .

3. The workplace of the (near) future

While the vaccination issue may be tricky for employers, many are considering other measures.

One is regular Covid-19 testing of their workforces, already in place in some medical settings, in high-risk sectors like the meat processing industry and in some manufacturing companies.

This could be relevant in getting settings like universities and large employer reopened – or safer for those who have to work on site – as the vaccination programme roles out.

Helped by funding from Science Foundation Ireland and AIB, Trinity College has a voluntary testing programme using a lamp assay test, which invovles saliva samples which a laboratory can turn around in an hour.

Kingston Mills, Professor of Experimental Immunology at the college, says such tests provide useful screening with those who come back positive then send to get the PCR test.

He also points to the possibility of another type of test – rapid antigen tests as a tool for employers, universities , schools and other large-scale settings, even if there is a risk of a reduction in accuracy if the test is self-administered. These are the tests in place in some Irish employers.

Cashman of RDJ said that some legal issues do arise in setting up a testing regime, notably in the area of GDPR and any storing of employee data and the need for risk assessments to underpin any programme.

However in some cases the demand for such testing is coming from unions and employee as well as employers, with all sides wanting to maintain a safe workplace.

Even as employees are vaccinated, employers will have to maintain the other more traditional safeguards – and it remains to be seen how long the Government will maintain the advice that everyone who can work from home should continue to do so.