COVID-19 Vaccine Conundrum for Employers

As the rollout continues with the Covid-19 vaccinations, its welcome news that Ireland will receive an additional 3.3 million doses of the vaccine produced by BioNTech and Pfizer. Others, such as the Moderna Covid vaccine and the AstraZeneca/Oxford University vaccine, will also be shortly included within the domestic inoculation programme.

These vaccines offer real hope in a time of despair, as the third wave of the virus hits our hospitals and communities with unprecedented numbers of infection.

Currently frontline health staff and the most vulnerable in society are being prioritised with the first batch, which is understandable. In the coming weeks and months the rest of the population will be offered these vaccines.

Vaccination is not mandatory in Ireland, but the HSE is strongly advocating that everyone gets the vaccine as soon as it becomes available to each individual. Therefore at the time of widespread inoculation, employers will be faced with the conundrum of how to best to deal with those staff members who refuse to take it.

Most employers, one would expect, will want their employee’s to take up the vaccine, as to ensure a normal resumption of business where possible. However employers will need to thread carefully and act within the confines of the law when advocating for such compliance.

The first step they will need to take is to carry out a risk assessment as obliged under Safety, Health and Welfare at Work Act 2005. The purpose of this assessment will be to identify health and safety risks within the workplace and then take the requisite steps to remove or minimise such risks as identified. 

Obviously, a key and reasonable step for an employer to take in minimising the risks associated with Covid-19, will be to ask and encourage all staff members to avail of the vaccine, as opposed to insisting or placing ultimatums.  

Health & Safety

It is important to note that under the 2005 Act, there is also an obligation on the employee to comply with health and safety regulations in the workplace. For instance, employees must take reasonable care to protect the health and safety of themselves and others and not engage in improper behaviour that will endanger themselves or others.

Despite these responsibilities, an employee can still refuse to take the vaccine and could do so for instance on religious grounds or health grounds regarding potential side-effects.  The employer in such an instance, will be unable to do much about such refusal except continue to implement secondary necessary measures to limit risks posed by Covid-19. For instance, placing increased emphasis on social distancing in the workplace, promoting good hand hygiene or alternate workers shifts as advised throughout the pandemic.  

Another approach to deal with such refusal, could be the updating of internal health and safety policies. For example, the policy could direct that all employees who are vaccinated can return to the workplace, while those who refuse or who are awaiting the vaccination, will be required to work remotely from home for specified period open for review. Such a policy would be technically justified, but could risk polarising some of the workforce and lead to internal grievances. Therefore, such policy changes will need to be carefully drafted, reasoned and proportionate.

Personal Rights

Irish citizens enjoy a broad set of personal rights including rights to bodily integrity, privacy and autonomy. These rights are enshrined and protected by the Irish Constitution and European charters and conventions. Irish employees also enjoy a range of employment rights under the Employment Equality Acts 1998–2015 that prohibits discrimination in the workplace on nine grounds, including religion and disability.

Accordingly, if an employer was to penalise, single out or dismiss an employee for refusing to take the vaccine, whereupon that employee has provided grounds for such refusal which fall within the safeguards of either personal or employment rights, they could face a number of litigious challenges and claims raging from discrimination to unfair dismissal. 

These vaccination issues in the workplace, albeit in their infancy, will stir much debate over the coming months, when the rollout becomes more widespread. There will be little appetite for the Government to get involved or legislate for mandatory Covid-19 vaccinations as to do so would greatly impinge on the personal and employment rights of Irish citizens.  Instead the government and health officials will be better placed to educate about the benefits of these vaccines, while eradicating any misconceptions and alleviating fears. 

Jason O’ Sullivan, is a Solicitor and Public Affairs Consultant at J.O.S Solicitors