With the Covid-19 vaccine being rolled out, we are keen as employers to ensure all our employees are vaccinated but we wonder is the policy of “no jab, no job” which we have heard being referred to in the media legal. How do I handle it?
The Covid-19 Vaccination Programme
At the time of writing, we are in the first phase of the Covid-19 vaccine rollout with those aged 65 years and older who live-in long-term care facilities and frontline healthcare workers being the first groups to be vaccinated. As of 8 February, 243,353 vaccinations have been given since the start of the vaccination programme.
The next group to be vaccinated are people aged 85 with other groups being offered the vaccine as soon as it is available, with stocks in limited supply.
It is therefore likely to be some time before the entire working population is offered a vaccine and to date, the approved Covid-19 vaccines licensed for use in Ireland (namely the Pfizer/BioNTech, Moderna and AstraZeneca vaccines) are not available commercially but a number of other vaccines are in the final stages of licensing and approval.
We do expect the government to issue guidelines for employers on the rollout of the vaccination programme however no such guidelines have been published to date.
Mandating the Vaccine
As it currently stands, the vaccination programme, is a public health programme so employers will have no control over/involvement in which of their employees are vaccinated or otherwise.
The Health and Safety Authority has recently updated its regulations on “biological agents” to include Covid-19. These regulations require that, where a risk assessment shows a risk to employees from working with a biological agent, for which a vaccine is available, employers must offer a vaccine. However, employers cannot currently offer a Covid-19 vaccine so it is unclear how these regulations actually fit with the Covid-19 vaccination programme.
Of note, the HSE has not mandated vaccination for their workers so it is hard to see how other employers could justify seeking to mandate it – even where they have a risk assessment to back it up. In any event, even if they could mandate it, there are issues and considerations in terms of data privacy, the constitutional right to bodily integrity, together with potential equality discrimination issues, for example employees who do not agree with vaccination on religious grounds.
Furthermore, there is a question over whether employers are even entitled to ask employees if they have been vaccinated as there may not be a legitimate basis for this under data protection legislation.
It is worth noting that when assessing the health and safety risk from a non-vaccinated employee, it is not currently clear whether someone who has received the vaccine can still be infectious to other people.
Accordingly, if the vaccine does not eliminate the threat of transmission of the Covid-19 contagion, then it would be difficult to argue that a requirement for mandatory vaccination in the workplace is a valid justification.
What Can Employer's Do?
At a minimum, employers should provide information and education to employees around the vaccine and encourage their employees to be vaccinated to protect themselves and to help keep the workplace safe.
Employers will need to update their risk assessments and Work Safely protocols to reflect the availability of the vaccine however, although the provisions of the Work Safely Protocol and the Safety, Health and Welfare at Work Act, 2005 oblige employers to take steps to remove or minimise any risks identified arising from their workplace risk assessments, employers cannot mandate vaccination and the vaccine is just one piece of the jigsaw in dealing with the Covid-19 threat. Employers must continue all their existing health and safety measures around Covid-19, including social distancing, masks etc for the foreseeable future.
In conclusion, employers will need to consider vaccination as part of their risk assessment however, while employers may wish to encourage employees to get the vaccine once available to them, it will not be possible for employers to mandate the vaccine.
As we are still currently some time away from the vaccine being widely available, employers would be best advised to hold off on making any definitive decision pending further guidance from the government.
This situation is subject to further change as the vaccine rollout evolves and employers will need to keep up to date with developments in this regard.
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