Covid Vaccination and the Workplace

Ireland’s vaccine roll out has progressed well and at this stage the vast majority of adults who want to be fully vaccinated, are fully vaccinated.

It has been a long 18 months for people and business however the truth is the vaccine is not the solution that will finish the Covid story. The vaccine is a key protection but other simple protections like distancing and hand hygiene will continue to play a role as we head into another Autumn/Winter season.

The question of whether employers are entitled to know the vaccination status of their employees is on many lips at present. Each country will have its own legal and ethical position on this and you may hear some employers use the phrase ‘no jab, no job’. That is not a recommended position to take in Ireland! The Data Protection Commission (DPC) published guidance in June which, to paraphrase, advises that it is not acceptable for
employers to demand to know the vaccine status of employees.

This information forms part of an employee’s medical record and is viewed as special category personal data.

The DPC explains that unless there is any new government advice, or even legislation, it will not be changing this position. They make the point that there is no specific guidance as to what an employer could then legally do with that information. The issue remains that to treat an unvaccinated person less favourably than vaccinated colleagues could lead to a successful employee grievance or legal claim.

The issue of vaccines for employers remains frustratingly vague. Those who have the vaccine are low risk of contracting the virus and even lower of getting badly sick from it. The employer does indeed have a duty of care to ensure everyone is fit to perform their duty but unvaccinated employees may be perfectly fit to do their duty and do not pose a great risk to their vaccinated colleagues.

Ultimately that is the position until the Government publishes new guidelines that convince the DPC to change their stance! In making workplace decisions, an employer must also focus on the array of other measures (in addition to vaccination) that help keep employees, customers and visitors safe. These are the tried and trusted measures in the Work Safely Protocols that include, but are not limited to:

• Having trained lead workers
• Social distancing
• Hand hygiene
• Use of face coverings
• Signage and floor markings
• Maintaining contact logs
• Temperature checks where necessary

These protocols are expected to be updated shortly with the end of the Summer and the return of schools/colleges feeling like the start of another phase or chapter in this ongoing Covid story.

All of the above factors, as well as vaccination, feed into the risk analysis of making workplace decisions.

Employees may have concerns returning to a more normal work environment if they, or others they know of, are unvaccinated. It is certainly the case that a high vaccination rate in general leads to a lower overall risk to everyone, especially when an employer continues to practice other safety protocols.

The Covid pandemic continues to pose other new challenges to the legal, HR and safety worlds and it’s not possible in a note such as this to provide an answer to every individual workplace scenario readers will experience in their own organisations.

For now, the key takeaways include the inability of employers to demand the vaccination status of employees and to continue with existing safety protocols which are likely to be updated in the coming weeks. Government inspectors are still checking for safety compliance. They have completed more that 33,000 inspections since May 2020 so keep vigilant, even with a high vaccination rate.

If there are individual challenges or grievances posed by team members, seek legal or HR guidance and I am sure individual solutions can be found.

Tommy Smyth, Tom Smyth & Associates

Tommy Smyth is a Director of Tom Smyth & Associates (TSA), who have assisted both Irish and international employers in Ireland in meeting their Human Resources objectives since 1991. TSA services include HR Consultancy, Conflict Resolution, Health & Safety, Employment Law. Visit them on www.tsaconsultants.ie or contact them on 021-4634154 or [email protected]

This Business Support article featured in the September/October 2021 issue of The Hardware Journal.