The Tánaiste is recently quoted as announcing more easing of the Covid-19 restrictions and that office workers may return to work by August. As restrictions ease and it is evident on the streets that more and more people are coming back to work, both employers and employees are facing the issues surrounding the taking of the Covid Vaccine and whether or not an employer can force an employee to take the vaccine?
The simple answer is an employer can ask an employee to take the Vaccine but cannot force an employee to do so. An employer can implement the encouragement of the take up of the Vaccine by setting it out this aspiration in the Employees Terms and Conditions of Employment, usually in an updated handbook which can be circulated to the employees. However, an employer cannot force or use tactics of enticement for employees to take the vaccine. If they were to do so, an employer is potentially breaching the Equal Status Acts Legislation. However, employers are finding themselves currently in the precarious position of balancing the health and safety of other co-workers over the privacy and bodily integrity rights of the individual employee. Under the Health, Safety and Welfare at Work Acts, an employer is obliged by law to ensure that every employee under their remit has a safe place and system of work. This is a dilemma faced by the employer as both vaccinated and currently more so, unvaccinated employees start to return to work. Business groups around the country have listened to employers about this dilemma and have reached out to the Government for practical guidelines on the matter.
The law in this area is two-fold. An employer must ensure a safe system and place of work while also respecting the personal rights of the employee. This applies in all areas of the workplace, so for example monitoring of employees work emails is allowable once it is applied correctly and stated in the terms and conditions of the employees contact. However, employers must be careful not to introduce a policy or a bonus scheme which discriminates against employees. So, the offering of a bonus to any employee who takes the Covid-19 Vaccine is clearly in breach of the Equal Status Acts under one or more grounds, one of which is disability. There may be employees who simply are not able to take such vaccine due to an underlining health reason which they may not wish to disclose. Although such information is protected under GDPR and Data Protection Law, an employee who is faced with such an offering in the workplace will find themselves discriminated against and will succeed against an employer under the Equal Status Acts for offering such a bonus. Therefore, the correct approach in this situation for employers is to apply the social distancing measures, as far as is practicable, as set out under the HSE guidelines.
If you are an employer or an employee who is concerned about issues surrounding the return to the workplace, contact our Employment Law Expert Anthony Shields by telephone on 021 239 0620 or by email: Anthony.firstname.lastname@example.org