Injecting Some Clarity for Employers into the Vaccine Conversation
It's time for employers to prepare for the widespread availability of the COVID-19 vaccine.

 

Now that Ireland is in the initial roll-out phase of the COVID-19 vaccine (vaccine), it is advisable for employers to begin preparing for its implications in the workplace. With two vaccines licensed for use in Ireland and several other vaccines in the final stages of licensing and approval, employees who wish to get vaccinated will be able to so in the coming months.

The Minister for Health, Stephen Donnelly (Minister) announced the National COVID-19 Vaccination Strategy (Strategy) on 15 December 2020. The Strategy ensures that the people who are most vulnerable to COVID-19 receive vaccines first with younger, healthier members of the public receiving the vaccine last. It is anticipated that the government will issue guidance for employers as the vaccine roll out progresses to the mass ramp-up and open access stages of the Strategy.

Ireland, unlike many other European countries, has never had a mandatory vaccine programme. To date, there is no indication that the government will make the vaccine mandatory. Therefore, not all employees in the workplace will choose to receive a vaccine. Italy and France both have existing mandatory vaccination for infections such as measles and mumps.  However, neither France nor Italy are considering making the vaccine mandatory.

Can an employer compel an employee to receive a vaccine?

There is currently no clear answer to this question. It seems likely that employers will want their employees to be vaccinated so that there can be a return to workplace normality. Inevitably not all employees will want to be vaccinated. This is untested legal territory.

The Constitution of Ireland (Constitution) sets out the fundamental laws of the state. The Constitution protects, amongst other personal rights, the right to bodily integrity and autonomy. While personal rights are not absolute and may be limited in certain instances such as for the common good, the existence of these rights will add a layer of complexity if mandatory vaccination is imposed.  The state could seek to justify a mandatory vaccine based on the common good. In this event, it seems likely the state would face legal challenges against the intrusion on personal rights. 

If an employer decides to mandate the vaccine it will need to examine the justification for doing so as employees are inevitably going to ask about the reasoning behind the decision. One implication of mandating the vaccine is the employer's potential exposure to liability where an employee suffers any adverse effects as a result of a mandated vaccine.  Another implication is the potential consequences of sanctions imposed on employees who refuse to get vaccinated. If an employee were dismissed based on their refusal to get vaccinated this could result in employers facing unfair dismissal claims.

Aside from the likelihood of legal challenges, an employer-mandated vaccine may not be well received by employees. Employees may have legitimate concerns about the safety of the vaccine or its side-effects and may be reluctant to receive it.  This could tarnish employee relations. 

Alternative options for employers

Employers may choose to adopt a similar approach to the flu vaccine where the employer provides information about the flu vaccine and often arranges for the flu vaccine to be made available for employees who wish to receive it on a voluntary basis. Employers may also choose to promote non-mandatory tools and policies, such as educating and reminding employees about the benefits and importance of vaccines, in addition to facilitating employees to receive the vaccine.

Health and Safety Issues

It is important for employers to remember their statutory obligations as regards health and safety matters.  Under the Safety, Health and Welfare at Work 2005 (2005 Act) employers must conduct risk assessments to identify hazards relating to the workplace and take steps to control and minimise any risks presented by these hazards.  Employees likewise have obligations under the 2005 Act including the duty to take reasonable care to protect their own safety, health and welfare as well as that of others.  Employees are similarly obligated to cooperate with their employer in this regard.  Applying such obligations into practice, it is likely that employers will strongly encourage employees to get vaccinated.

The Work Safely Protocol published by the government in December 2020 indicates that employers must continue to review and update their risk assessments as part of their COVID-19 Response Plan. Now that the vaccine is available, risk assessments should reflect this development and employers should consider whether additional measures will be required in order to control and minimise the risks for employees who do not wish to receive the vaccine. While employers may argue that requiring all employees to be vaccinated is key to minimising the risks associated with COVID-19 in the workplace, mandating the vaccine could result in employee/industrial relations issues and litigation.

Employers may wish to consider alternatives to minimising the risks associated with COVID-19 in this context. For example, employers may decide to engage with their workforce and request that employees who do not receive the vaccine continue to work from home for the time being. Inevitably employees who get vaccinated may be reluctant to return to a workplace where employees who do not receive the vaccine are also working.  The issue is complex in terms of balancing an employer's statutory obligations against minimising the risk of workplace disputes or litigation.  It is anticipated that guidance will issue from the Health and Safety Authority on the recommended approach.

Potential Discrimination claims

The Employment Equality Acts 1998-2015 prohibit discrimination on 9 grounds (Protected Characteristics).  The Protected Characteristics are gender, civil status, family status, sexual orientation, religion, age, disability, race or member of the travelling community.  Employees who do not receive the vaccine for reasons related to Protected Characteristics and who are treated differently by their employer as a result, may seek to initiate a discrimination claim in the Workplace Relations Commission. It is likely that religion, disability and age will influence an employee's decision not to get vaccinated. There is a need for clear communication between the employer and employees around an employee's reasons for declining vaccination.     

Approach in other jurisdictions

Employers worldwide are faced with similar legal issues in relation to the vaccine. The UK is not introducing a mandatory vaccine policy and, as a result, UK employers are unlikely to mandate the vaccine. The UK Advisory, Conciliation and Arbitration Service (ACAS) has stated that an employer may decide it is essential for employees to be vaccinated. However, this can only apply if vaccination is a necessary requirement for the employee's job, for example, if an employee travels overseas for work. 

An industry survey of lawyers conducted in the UK found that 41% of respondents felt law firms should require all staff to be vaccinated before returning to the workplace while 38% disagreed with this opinion. The remaining 21% were unsure or did not have a preference. 

In Germany, employees cannot be forced to get vaccinated without a legal basis. Employees have a constitutional freedom not to get vaccinated even if this means putting themselves in danger. Once a vaccine has been made available to everyone, German law allows for the provision of a vaccination bonus to employees who have been vaccinated. Despite the principle of equal treatment, the vaccine provides a justified reason for differing treatment because it is advantageous to both employee (lower risk of infection) and employer (less sick pay). 

In Sweden there is a constitutional right not to be subject to bodily intrusion by the state, but this does not apply to private employment.  Despite this, it is understood that private employers will, most likely, not make the vaccine mandatory.   

Data Protection Issues

The vaccine represents a positive and welcome development for a safe return to the workplace. Despite employers' eagerness to confirm whether employees have or have not received the vaccine, their duties under data protection legislation continue. Employers have an obligation to keep employee personal data confidential and secure and to ensure data concerning health is processed only with the appropriate legal bases. 

The Data Protection Commission issued guidance (Guidance) at the beginning of the pandemic confirming that "data protection law does not stand in the way of the provision of healthcare and the management of public health issues" and that "measures taken…should be necessary and proportionate".  The Guidance cited employers' statutory obligations under the 2005 Act and clarified that Article 9(2)(i) or Article 9(2)(b) of the GDPR provide a legal basis for processing health data where such processing is necessary and proportionate. Further, under Article 6 of the GDPR, employers may seek to rely on a legal obligation, public interest grounds, or the legitimate interests of the employer (where an assessment has confirmed these outweigh the interests of employees) to process such information.

At all times, employers should consider the necessity and proportionality of collecting and processing employee information in line with government guidance. Employers will need to follow up on any additional processing of personal data with updated data protection notices, additional data protection impact assessments, recorded in line with data protection procedures and updated Article 30 Records, as required.

Comment 

To-date, employers have successfully managed significant pandemic-related challenges, which required the imposition of immediate changes in the workplace. Now that the vaccine is in the initial roll-out stage under the Strategy, employers have time to prepare. 

Employers should continue to monitor the vaccine-related legal landscape.  They should also prepare a plan concentrating on how to address the vaccine with their workforce once it becomes widely available. Considering the government's allocation strategy, it will be some time before employees who wish to receive the vaccine can do so. For this reason, many of the current practices such as remote working, social distancing and wearing masks will likely continue for the foreseeable future. Preparing a plan can ensure that employers provide the maximum level of safety for their employees in the workplace.  

 

Contributed by Nicole Fitzpatrick & Ellen O'Duffy