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thorny issues

Explainer: Why bosses could be on shaky legal ground if they ask staff about vaccine status

Asking workers to be fully vaccinated before returning to work raises thorny legal issues.

FACEBOOK AND GOOGLE have this week confirmed that their staff in the United States will have to be vaccinated against Covid-19 before being allowed to return to the office.

It’s not clear yet whether the tech giants intend to apply this policy to their Irish-based staff or even whether that’s legally possible — the question throws up all manner of thorny issues.

Broadly speaking, Irish employers cannot mandate that their staff be vaccinated before returning to the workplace.

However, according to the advice in the Government’s Work Safely Protocol, employers can “redeploy” unvaccinated workers within the business if it is “deemed that an unvaccinated worker is not safe to perform certain work tasks”.

Asked today whether employers should require workers to be fully vaccinated, Taoiseach Micheál Martin told reporters, “We need to be extremely careful as a society in terms of restricting people’s access to earning a wage.”

But in a recent blog post, employment law solicitor Richard Grogan warns that without further “clear and definitive advice” from Government, workplace disputes on the subject of vaccination status could lead to litigation.

In the absence of new guidance, employers are currently “feeling around in the dark”, solicitor Karen Killalea, partner and head of the employment team at law firm Maples and Calder, tells The Journal.

“Obviously, one of the key developments since [the Work Safely Protocol] was last updated in May 2021 has been the significant advances in the national vaccination scheme,” she says.

However, Killalea explains, the Protocol “is largely silent, in terms of specific guidance for employers on how they should regard vaccination status”.

Mandatory vaccination “does not exist in any shape or form” in Ireland and has never been a feature of our public health system, she says.

“So when you translate that into the workplace, employers are simply not in a position to mandate that somebody takes the vaccine,’ Killalea adds.

However, “employers are absolutely entitled, and in fact, must have regard to public health guidance to drive their decisions on who comes back, when and how,” she says.

“But at the moment, using vaccination status is not based in any current public health guidance,” Killalea explains.

That means that if an employer asks staff to be fully jabbed before coming back to work, they could leave themselves vulnerable to complaints of discrimination.

Potential disputes

Broadly speaking, it throws up the potential for disputes across two main areas, Killalea says.

The first falls within the category of employment law.

There is certainly the risk there that an employee who is not vaccinated may say, ‘Well, this is unfair; there’s no basis for this; this is a penalisation of me.’ Therefore, the employer needs to be very careful.

“The employer would need to interrogate the reasons why somebody is not vaccinated,” she explains.

“Maybe it’s because the programme hasn’t rolled out sufficiently, or it could be for a medical reason, or indeed, it could be for a political opinion… You start to get into tricky legal ground if you penalise people for that.”

The second issue, she says, is around data protection and the processing of “special category” data such as vaccination status.

Killalea explains, “It’s quite difficult to process that data unless you can show that you have a proper legal basis for doing so.

“And again, the absence of any instruction or guidance to employers to actually take vaccination status into account is immediately problematic because all you can do is say to the employee, ‘Look, tell me if you’re vaccinated.’”

Killalea says some employers have even asked if they can require workers to furnish their Digital Covid-19 Certificate as proof of vaccination status.

This is problematic because, according to guidance issued by the Office of the Data Protection Commissioner, workers “should not be asked to consent to the processing of vaccine data as this consent is not likely to be freely given”.

Even redeploying unvaccinated workers within a business, as the Government’s guidance suggests, could be risky, Killalea says, because workers could claim they’re being penalised or treated differently.

With all of this in the foreground, there is a “strong desire” among employers for fresh public health guidance that clarifies whether vaccination status “is actually a key prevention and control measure for the spread of Covid-19″, Killalea says.

She adds, “For example, the Work Safely Protocol talks about the importance of social distancing.

“Everybody knows to keep two metres distance. No one questions this. If someone comes within two metres of us you can say, ‘Please don’t because the public health guidance has told us there is increased risk if you do.’

“So wouldn’t it be great if the vaccination status was treated in the same way?” 

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