Employees who refuse the Covid-19 vaccine – what you need to know
As Covid-19 vaccines are rolled out across Ireland, employers need to consider their role in the process and the potential impact on their employees. In the coming months, employers and employees may be faced with some difficult questions. Below, we take a look at the issues likely to arise.
Can employers require their employees to be vaccinated?
No. Employers face a high legal risk in mandating that employees be vaccinated. All people have a right to privacy, autonomy, and bodily integrity under the Irish Constitution. In situations where employees do not want, or cannot have, the vaccine on grounds of religion or for medical reasons, employers must recognise that these are protected grounds under Irish employment equality legislation. Employers could be discriminating against an individual employee if they mandate that all employees must be vaccinated. Instead, employers should actively encourage their employees to get a vaccine, and as vaccines become more freely available, businesses may even facilitate this in the workplace by arranging for an occupational health professional to administer the jabs.
Can employers ask their employees if they have been vaccinated?
No, an employer cannot ask an employee if they have or have not been vaccinated. This is an extremely sensitive issue and employees have privacy and data protection rights that must be respected. An employer would need to have a valid reason for requiring an employee to disclose this information. However, nothing prevents an employee from volunteering this information to their employer.
Can employers discipline employees who refuse to disclose whether they have or have not been vaccinated?
Disciplining or dismissing an employee for not getting a Covid-19 vaccine, or for not disclosing if they have had a vaccine, could leave an employer exposed to legal action. Where an employee is not vaccinated, for whatever reason, the employer must explore all reasonable alternatives for that employee to continue to work safely, such as a work-from-home arrangement.
Do employees have the right to know if their fellow employees have been vaccinated?
No, employees do not have the right to know if their co-workers have been vaccinated, and will be at the mercy of their co-workers in this regard. Ultimately, an employee cannot be discriminated against, by their co-workers or their employer, for not getting a vaccine.
What should employers do if an employee refuses to get vaccinated?
The Irish government issued the Work Safely Protocol in November 2020, which provides information to employers on measures that need to be implemented to ensure that workplaces can operate safely during the pandemic. Employers should monitor relevant legislation and public health guidelines for changes and updates. It is expected that the Data Protection Commissioner will issue guidance in the coming months on exactly what information an employer can ask for, and collect, regarding their employees and Covid-19 vaccines. Until further guidance is issued, it is recommended that employers only collect the minimum amount of data necessary to implement Covid-19 measures in the workplace.
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