Vaccinations at work and the law
Ireland’s employment rights legislation protects all employees who are legally employed on a contract of service basis. Vaccination status does not reduce the established employment rights that are afforded to employees.
Where an individual believes they are being deprived of employment rights applicable to employees they may refer a complaint to the Workplace Relations Commission (WRC) where the matter can be dealt with by way of mediation or adjudication leading to a decision that is enforceable through the District Court. WRC inspectors can also be asked to investigate certain breaches.
Vaccinations at work – safety protocols
The Work Safely Protocol was recently updated to reflect information learned over the course of the COVID-19 pandemic. This revised Protocol incorporates current advice on the Public Health measures needed to reduce the spread of COVID-19 in the community and in workplaces and includes information on wearing of masks, ventilation of workplaces, vaccinations and antigen testing.
The Protocol is applicable to all sectors of the economy and sets out the minimum measures required in every workplace to prevent the spread of Covid-19 and to facilitate the re-opening of workplaces as well as the ongoing safe operation of those workplaces. All employers and employees need to continue to implement the measures set out in the Protocol. The updates Work Safely Protocol also offers some general guidance for employers around vaccinations in section D14 of the Protocol.
The decision to get a vaccination against COVID-19 is voluntary. If any employee decides not to avail of the offer of a vaccination, an employer must review their workplace safety and health risk assessment and decide whether the employee can carry out their work without vaccination, and what other protective measures might be needed.
Vaccinations at work – advice to employers
The Health and Safety Authority (HAS) can offer advice and guidance to employers on conducting risk assessments and the Workplace Contact Unit in the HAS can deal with complaints and queries from both employers and employees about the application of the Work Safely Protocol at their place of work. However, the Health and Safety Authority will not be able to offer advice on what work should be assigned to individual employees based on their vaccination status, an employer’s workplace health and safety risk assessment could consider an individual’s vaccine status, if this information has been supplied by the employee.
Fundamentally, the decision to get a vaccination is voluntary and there are no plans to make vaccinations mandatory. Employers will have to bear this in mind when undertaking risk assessments and the organisation of work activities. Communication between employers and employees is important to identify any potential problems.
Vaccinations at work – competing obligations
A balance exists between an employer’s legal obligation to protect the health of their employees and maintain a safe place of work and an employees’ right around privacy of their medical information. In this regard, in some circumstances, employers may be justified in requiring employees to inform them that they have been vaccinated. Implementation of such a stringent requirement in a workplace, would require a strong justification based on necessity, proportionality and on an assessment of risk.
This should take into consideration specific organisational factors such as the presence of vulnerable persons in the workplace, any reasons the employee might potentially have for not disclosing such information and any directions or guidance of the public health authorities.
Can an employer make an employee get a vaccination?
If an employee decided they do not wish to avail of the vaccination, an employer cannot compel them to do so. In this context, the employer must review their risk assessment and decide whether or not the employee can carry out their work without vaccination, and what other protective measures may be needed. There may be certain circumstances where it is deemed that, for their own safety, an unvaccinated person is not safe to perform certain tasks and, in such circumstances, the employer may have no option but to redeploy the worker. This decision would have to be agreed between the employer and the employee.
Conclusion
While the Health and Safety Authority cannot arbitrate on the particular role that an employee can be asked to undertake arising from a risk assessment, an employer can contact the Health and Safety Authority for advice on how best to carry out a risk assessment and comply with the Protocol. Separately, both employers and employees can access the services of the Workplace Relations Commission for advice on any work relations issue that might arise.
Further Information
For further information, please contact the author of this article, Barry Crushell.
