As the Covid-19 vaccines are slowly rolled out in Ireland, employers need to consider their role in the process and the potential impact on their employees. In the coming months, employers may be faced with some of the questions below.
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 fall foul of discrimination against an employee if it mandates that all employees must be vaccinated. Instead, employers should actively encourage their employees to receive a vaccine, and as vaccines become more freely available, businesses may even facilitate this in the workplace by arranging an occupational health professional to administer them.
At present, the government recommends various vaccination programmes, but none are compulsory. There is also no evidence to suggest that the government is going to implement a blanket instruction for every person in Ireland to have the vaccine.
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 is stopping an employee from volunteering this information to their employer.
Can employees who refuse to disclose whether they have or have not been vaccinated be disciplined?
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 working-from-home arrangement.
Do employees have a right to know if their fellow employees have been vaccinated?
No, employees do not have a 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?
In the first instance, employers should always follow public health guidance. The Irish government issued the Work Safely Protocol (November 2020) which provides information to employers on measures that need to be implemented to ensure that workplaces can operate safely. Employers should monitor legislative changes and public health guidelines for changes. It is expected that the Data Protection Commissioner will issue guidance in the coming months on what information an employer can ask for and collect regarding their employees and the Covid-19 vaccines. Until further guidance is issued, it is recommended that employers only collect the minimum amount of data that is necessary to implement Covid-19 measures in the workplace.