Most countries agree that a rapid rollout of the Covid-19 vaccination is the key to reopening the economy. But employers, unions and lawyers are grappling with the issue of what happens when an employee does not want to get vaccinated.
A survey last January by human resources technology firm HR Locker, of 750 employers in the UK and Ireland revealed that 40% of respondents would be prepared to dismiss an employee who refused to get vaccinated without a reasonable excuse and 23% of organisations polled planned to mandate vaccination for their staff. This is likely to cause significant problems for any employers who proceed to do either as they may expose themselves to claims including under the Equality Legislation or Unfair Dismissal Acts.
Furthermore, there is currently no legal basis for employers to collect information on the vaccination status of their employees, the Data Protection Commission (DPC) has stated. The watchdog is to tell employers that, in the absence of public health advice making it a requirement for employers to establish whether their staff are vaccinated, processing vaccine data “is likely to represent unnecessary and excessive data collection for which no clear legal basis exists”.
A mandatory vaccination policy would bring huge employment law, human rights, and constitutional issues into play. The Irish Council for Civil Liberties argues that it would be “very questionable” on legal grounds if employers tried to take unilateral action to force employees to take a medicine.
The Department of Enterprise, Trade and Employment confirmed that employers cannot compel employees to be vaccinated. However, it acknowledges that there may be situations where, following a risk assessment, it is deemed unsafe to allow an unvaccinated person to carry out their duties. Presumably, this is more likely to apply in certain sectors for example, health care, but employers need to be very careful and consider each role individually. The Department recommends in such instances that the employer should consider redeployment, with the consent of the employee. However, it does not address what happens if there is no alternative role available within the company.
A recent Irish case where a 66-year-old grandmother was jailed for 90 days for refusing to wear a face mask in shops has brought the issue to the fore again. Many employers in the retail and hospitality sector have encountered such difficulties where customers have refused to wear masks, without reasonable justification, potentially poses a risk to the Health and Safety of employees. Margaret Buttimer from Bandon, Co Cork was charged with contravening section 31A of the Public Health Act 1947 as amended by 2020 legislation to prevent, limit, minimise or slow Covid-19’s spread by refusing to wear a mask in a shop.
Mandatory vaccination and mask wearing is fraught with legal and human rights problems and employers await further guidance from the Government on how to handle this controversial issue.
NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email firstname.lastname@example.org.