Businesses between ‘rock and a hard place’, unable to ask staff's vaccination status

Staff of small- and medium-sized businesses who refuse to get vaccinated will find themselves being taken off the payroll, the head of Isme, a representative body for the sector, has warned.

Neil McDonnell told The Irish Times that the refusal of some staff to get vaccinated can interfere with an employer’s plans for reopening the workplace.

In many smaller businesses, staff know who is vaccinated and who is not, and it is often not possible to redeploy the unvaccinated person to another role.

Such staff “can’t be dismissed, but they won’t be on the payroll either”, Mr McDonnell said. “They will still enjoy their contract of employment, but if they are unable to fulfil their contract of employment, they are unlikely to get paid in most businesses.”

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From small businesses in rural towns, to multinational tech companies, to the civil and public service, the freedom which the successful Covid-19 vaccination campaign is returning to society is throwing up fresh challenges as businesses contemplate bringing staff back to their workplace.

The biggest issue facing employers is the ruling by the data protection commissioner, Helen Dixon, that, as matters stand, most employers cannot ask their employees if they are vaccinated against Covid-19.

"We're between a rock and a hard place," said Anne Reilly, the owner and chief executive of Paycheck Plus, which provides outsourced payroll services and has its main office in Drogheda.

The company has 30 employees, with 22 of those working on core payroll services. The work is considered an essential service.

Ms Reilly is unhappy about the work being done from home because of the sensitivity of the data being handled.

Risk

“The team are excellent in terms of guarding their information, but still there is that risk, and I feel that is not fair on our clients. So we are pulling everybody back in come the first of September.”

“If there is a vulnerable person or someone who is not vaccinated, we have to make provision for them. That’s fine. You can work something out.”

“But on the other hand, we are not allowed ask and retain the information if they have been vaccinated. So how do we know if a person needs special attention and care and minding, unless they come and tell us? And even if they do tell us, we are not supposed to maintain a record. We are stuck between a rock and a hard place.”

"An employee in a pub can ask a customer if they're vaccinated, but the pub cannot ask the employee," said Melanie Crowley, head of the employment and benefits team at Mason Hayes & Curran law firm.

“Isn’t that nonsense. You have to be vaccinated to have a pint, but you don’t have to be vaccinated to go into a workplace with colleagues.”

This is the biggest issue facing the clients she is advising as they contemplate how to reopen their workplaces, she said.

Many have open-plan offices with pods where four employees used to sit significantly less than two metres away from each other.

If it were possible for businesses to ask employees about their vaccination status, the vaccinated employees could return to these desks, and work without masks. Special arrangements could be made for the unvaccinated.

“You could have floors for those who are vaccinated and floors for those who are not.” Legally that could be justified on health and safety grounds, “though there might be an employee relations issue”.

Status

But because of the restriction on employers asking about vaccination status, social distancing – and mask – might instead have to apply to all staff, meaning that the number of staff that could be accommodated in some offices could be cut by up to 75 per cent.

“Some of the Californian tech companies are saying only vaccinated people will be allowed back. That is not going to wash on this side of the Atlantic.”

Basic terms of a person’s employment, such as how much they are paid and where they work, cannot be changed without the consent of the employee, said Ms Crowley.

"If my place of work is Barrow Street, Dublin 4, and all of a sudden that changes, to Clontarf, that is a change to my conditions of employment, and I need to agree to it. But what if I say no, I am in a two-bedroom house with six kids and I'm under the stairs at a desk, and I want to be back in the office. I think there will be an issue there, if it is enforced, rather than agreed."

This week it emerged that Google, which is planning to have employees globally return to the office on October 18th, is considering reducing the pay of those staff in the US who choose to work permanently from home, and who live in locations that have a lower cost of living than, for instance, San Francisco.

A survey by the company found that, globally, 20 per cent of workers want to work permanently from home, with the rest opting to return to a hybrid of home/office work, or to work five days a week at the office. Those who are coming to the office will have to be vaccinated.

A spokeswoman for the company would not comment on how the return to work issue would be dealt with in Ireland, adding government guidelines would be followed.

European context

Daryl Hanberry, a partner with Deloitte, whose clients include major multinationals, believes that pay differentials for employees working from home may not emerge in Ireland, but that the idea may emerge when you look at the broader European context.

“Some of the multinationals have said if you want to work in a different jurisdiction, you may do so,” he said.

“You could see a scenario developing where companies are considering, Dublin is expensive, should we pay them a different salary if they are living in France?”

If, for instance, an employee could move to a unit in Portugal, and avail of a significantly cheaper cost of living, would they be willing to take a pay cut as part of the move, knowing that overall their standard of living might improve.

“The general sentiment we are hearing is that there is a little bit of an acceptance in the market that people would be comfortable with that.”

A spokesman for the Financial Services Union, which represents workers in banks and other types of financial services, believes workers should get pay rises for working from home.

“Look at the savings they are making,” he said, referring to the employers.

"If you look at AIB in particular, it has closed a number of head offices, stopped a number of leases. That has saved millions. And then there is light, heating and everything else. And then you have to take into account the extra expense that goes on to the employees from increasing broadband, the light and heat and everything else that goes with working from home."

The union is in discussion with banks and other financial institutions about employees getting pay increases in return for working from home.

“It’s too early to say what approach they are taking,” the spokesman said.

Meanwhile, in the civil and public service, where a huge percentage of employees have been working from home, negotiations are ongoing as to how to implement blended working which, surveys have shown, most workers would prefer once offices open up again.