Vaccine rollout will present tricky legal issues for employers
It is highly unlikely employers will be able to insist all of their employees are vaccinated
Businesses in Ireland will face issues never seen before as attention is focused on the vaccination programme and its rollout. Photograph: Pablo Blazquez Dominguez/Getty Images
While last year was undoubtedly the year of the pandemic, 2021 is quickly shaping up to be the year of the vaccine. In light of Ireland’s deteriorating public health situation and the widespread prevalence of coronavirus in the community, it is clear that the prompt implementation of Ireland’s vaccination strategy is the only viable way out of this pandemic.
In the one month since Minister for Health Stephen Donnelly announced Ireland’s national coronavirus vaccination strategy, we have seen two vaccines approved for use and the approval of additional ones is anticipated in the coming months. With this in mind, employers need to get to grips with some novel and complex issues that will arise this year as some, but perhaps not all, of their workforce is vaccinated.
Across the globe we are already seeing legal issues arising for employers in relation to vaccination programmes. British media have reported in the past few days that a large London plumbing company is planning to introduce a “no jab, no job” policy that will require the entire workforce to be vaccinated against the virus.
Digital vaccination passport
Globally, leading private and public health and technology organisations are working together to create a digital vaccination passport in the expectation that governments, airlines and other businesses will require proof that people have been vaccinated against the virus.
The Vaccination Credential Initiative aims to establish standards to verify whether a person has had their vaccination and prevent individuals falsely claiming to be protected against the virus.
Here in Ireland, businesses will face issues never seen before as attention is focused on the vaccination programme and its rollout. 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.
Under the Constitution, there is a fundamental personal right to bodily integrity. While fundamental rights are not absolute and may be balanced against the common good, there is currently no indication that the Government plans to legislate for mandatory vaccination.
Furthermore, 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.
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.
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.
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.
Open to challenge
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.
It is hoped that the DPC will similarly publish a guidance note to aid employers to navigate some of the complex issues that arise in processing vaccine-related data.
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 implications for the safety of their workplace. For that reason, employers would be well advised to start planning now and, at a minimum, prepare a checklist of issues that need to be considered and decisions that need to be taken.
In doing so, it should also be borne in mind that the vaccination programme is unlikely to be a one-off event. Booster doses will likely be needed in the future and employers should therefore plan for coronavirus 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 premature for most of them to implement vaccination policies at this time.
However, it is certainly time for employers to put this issue on their HR agenda for 2021 and to keep a close eye on relevant public health updates and Government guidance. All going to plan, employers should soon have a line of sight as to when their workforce is likely to be vaccinated. Once they do they will be in a much better position to finalise their vaccination policies and communicate with their workforce. Recent experience would suggest this is one agenda item that HR teams are actually looking forward to tackling.
Michael Doyle is a partner in A&L Goodbody’s Employment Law Group