With the COVID-19 vaccine rollout underway, many employers are considering how the availability of the vaccines will help them safely resume pre-pandemic operations.
Although more cohorts of the workforce will become eligible for vaccination in the coming months, it’s likely that some but not all employees will take up the offer of the coronavirus vaccine. This is a difficult scenario for employers and various legal risks need to be considered before confirming a position on staff vaccination.
Employment law risks
Anecdotal evidence suggests that many employers want their entire workforce to be vaccinated before resuming business as usual. In an ideal world, all employees will take up the offer of vaccination, but this is unlikely to be the case in most workplaces.
Requiring all staff to take the vaccine is not an option at present. There is currently no legal basis for employers to insist that staff take the vaccine. The Irish Constitution protects a range of personal rights which includes the right to refuse medical treatment. The Government may yet legislate to restrict these Constitutional rights in the interest of the common good. But, there’s currently no indication that they’re planning to introduce a law mandating vaccination.
In the absence of a Government mandate, businesses that insist staff are vaccinated may be exposed to a range of legal risks. Personal injuries claims may arise if an employee suffers adverse effects after taking an employer-mandated vaccine. Employment equality law protects employees on nine specific grounds and discrimination claims are possible if employees suffer a detriment for refusing the vaccine for medical, religious or age-related reasons. And unfair dismissal claims could also ensue if employers terminate employment based on a refusal to take the vaccine.
Employers also need to consider the impact of a mandated vaccine on employee relations. It’s quite possible that employees will resist a heavy-handed, mandatory approach to the vaccine which could affect overall morale in the business.
Health and safety obligations
On the other hand, employers do have a legal basis to encourage staff to take up the offer of vaccination under health & safety legislation. Employers should first update their risk assessments to take account of the availability of vaccines. If taking the vaccine reduces the risk of workplace transmission, employers would have grounds to encourage staff to take the vaccine on the basis that it reduces health & safety risks at work.
Employees also have reciprocal obligations to take reasonable care in the workplace to protect their own safety, health, and welfare as well as that of others. Employers are entitled therefore to strongly encourage staff to take the vaccine. Employers can also facilitate employees in making arrangements to receive the vaccine. Many employers already undertake a similar exercise for the flu vaccine each year.
What should employers do to prepare?
For now, employers should continue to monitor Government and Health and Safety Authority advice. The rollout of the vaccine is likely to be protracted and employers should use this time to communicate with staff about how the availability of vaccines will help restore a safe working environment.
As many employees will not receive the vaccine for some time and others may choose not to take the vaccine, alternative safety measures will continue to be relevant. Until the impact of the vaccine rollout on community transmission is established, existing risk mitigation measures like remote working and social distancing will need to remain in place.
Managing the vaccine rollout in your business
Our new online tool VaccTrak will help you keep track of who’s had the COVID-19 vaccine in your business.
VaccTrak allows you to:
- Update your employee profiles to easily record who’s had the COVID-19 vaccine.
- Download regular reports to see exactly who’s been vaccinated, so you can keep your people safe during the vaccine roll-out.
- Download professional letter templates to encourage your staff to have the vaccine.
- Access our exclusive vaccine awareness course. Share it with your staff to educate them on the vaccine and answer any complex questions.
Need help handling your HR issues?
Call our 24/7 helpline for instant, unlimited advice on all your HR issues. To speak to an expert now, call 0818 923 923.
