Q&A: The Vaccine & The Workplace
- Can employers ask employees to confirm if they have taken the vaccine and keep a list of those who have done so?
Employers are not prohibited from asking employees if they have taken the vaccine however they would need to identify a legal basis under the General Data Protection Legislation (GDPR) to collect any information relating to their employee’s vaccination status. For example, it may be possible to assert that collecting this information is necessary to achieve the employer’s ‘legitimate interests’. However, the employer would need to show that requesting and processing this information is both necessary and proportionate to achieve its purposes by reference to the specific circumstances in the workplace, and that its interests in promoting the health and safety of its workforce or otherwise outweighs the employee’s right for such data not to be processed.
- Can a refusal to get vaccinated be sanctioned, e.g. by refusing an employee access to the office or stopping their pay or dismissal?
There is currently no legal obligation for individuals to take the covid-19 vaccine and therefore Irish bodies may be slow to consider a decision not to take the vaccine as “unreasonable”, or accept an analysis that taking a vaccine is a “requirement” of a role. Therefore, in the event that an employee refuses to take the vaccine, it is recommended that the employer engages with the employee and discuss alternative measures, for example, redeployment to another role. The employer must also bear in mind that there may be different reasons why an employee has chosen to refuse the vaccine and employers will need to consider their obligations under the Employment Equality Acts.
Under the Health & Safety Act, having carried out a written risk assessment, if it is determined that if someone is not vaccinated and therefore would not be regarded as being in a safe position to perform certain work tasks, then the employer should engage with the employee and consider redeploying them to another role, requiring them to comply with other health and safety measures or allowing them to work remotely etc. while maintaining them on full pay.
- Does an employee have a right to refuse to work alongside another person who has not been vaccinated?
Under the General Data Protection Legislation (GDPR) employers are not permitted to disclose the vaccination status of an employee to other staff. Under the Safety, Health and Welfare at Work Act 2005, if an employee asserts that working physically alongside unvaccinated persons places them in “serious and imminent danger”, the employee cannot be penalised for leaving work or taking measures to protect themselves from that danger.
The employer can take steps to ensure employees cannot assert they are in “serious and imminent danger” by taking reasonable precautions to protect employees in line with the Government’s Work Safely Protocol, such as allowing employees to work from home, implementing Covid-19 safety measures (including maintaining social distancing in the workplace, the use of antigen tests etc) and considering redeployment options.
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The 411 on The Right to Request Remote Working
This upcoming legislation will give employees the right to request remote working and work is underway on its development. A framework will be developed on how those requests can be considered. The Work Life Balance Directive (which must be fully transposed into Irish law by August 2022), has been mentioned throughout the development of the remote working legislation.
This Directive is to provide every employee with children up to eight years of age, and carers, the right to request flexible working arrangements, this remote working legislation will further support an employee’s work life balance. The Directive gives Member States discretion to legislate around the duration of flexible working arrangements and provides that employers “should be able to decide whether to accept or refuse a worker’s request”.
Within the strategy document, it states that introducing legislation on this topic will provide employees a framework around which such a request could be based and that this could provide clarity to employers on best practice on dealing with such requests.
The drafting of this legislation will be much anticipated, as there is currently a lack of a legal or agreed definition of remote working during a time of mandatory remote working caused by Covid-19.
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