Alison Martin (pictured) of law firm DWF says that the arrival of the Covid-19 vaccine means employers are entering uncharted waters under Irish employment law

Can employers insist an employee is vaccinated?

An employer may encourage employees to get vaccinated, however they cannot insist that employees are vaccinated.

Under the Irish Constitution, there is a fundamental right to bodily integrity and autonomy. This includes the right to decline or refuse medical treatment. In the absence of any specific legislation requiring employees to take the Covid-19 vaccine, there is no legal basis for an employer to adopt a mandatory vaccination policy. Any requirement for an employee to get vaccinated would likely be an infringement of their rights under the Constitution.

What discrimination issues might arise?

The Employment Equality Acts 1998-2015 (EEA) protect employees against discrimination on nine protected grounds, including age, gender, race, religion, disability, family status, civil status, sexual orientation, or membership of the traveller community.

Some people may choose not to get the vaccine due to pregnancy or fertility concerns (gender/ family status), their age or religion, or because of a disability. If such employees are treated differently or less favourably than other colleagues who have received the vaccination, they could take a claim under the Employment Equality Acts alleging discrimination.

Mandatory vaccination policies may, therefore, be indirectly discriminatory and unlawful unless they can be objectively justified.

In Association with

What steps should employers be taking?

Employers should carry out or update their risk assessment and update any existing Covid-19 response plan and safety statements to take account of employees who have received the Covid-19 vaccine.

Consider if working from home can be facilitated where applicable, and develop or update current policies in relation to working from home.

Continue to monitor public health guidance for information in relation to the vaccine and any health and safety measures recommended for a safe return to work and communicate with employees in relation to any updates on internal health and safety measures being adapted.

Can employers refuse entry to the workplace if an employee has not been vaccinated? 

For employees who do not wish to be vaccinated, employers should consider alternative working arrangements, such as allowing employees to work from home.

Where working from home is not feasible, due to the nature of the role for example, employers will need to consider other options or measures that can be put in place to limit the spread of Covid 19 to protect employees, such as additional social distancing and hygiene measures.

Employers might also consider moving employees to different roles, with their agreement, in the case of employees who are not vaccinated.

What are the data protection implications?

In addition to employment law considerations, employers should also be mindful of their obligations under data protection legislation.

Information regarding whether an employee has or has not been vaccinated is medical data which is considered sensitive personal data/ special category personal data and is therefore subject to stricter rules under the Data Protection Acts 1988-2018 and GDPR.

Employers may argue that processing such information is necessary to comply with their legal obligations under the Safety, Health and Welfare at Work Act 2005, to ensure the health and safety of their employees at work. It is not yet clear, however, if this will be sufficient justification for such processing. 

The Data Protection Commission (DPC) previously issued guidance on mandatory temperature testing of employees, so it is hoped it will also issue guidance in relation to the processing of vaccine related data for employees.

Conclusion

This is a complex and fast-developing issue for employers. While the rollout of the vaccine throughout the country will take some time, it is important for employers to continue monitoring public health advice closely and to start considering what impact the vaccination programme may have in terms of health and safety in the workplace.

+ Alison Martin is a senior associate in DWF's employment and benefits team and works with corporate clients, not-for-profit organisations and private clients