No Jab, no Job? 8 Questions Employers are asking about COVID-19 Vaccinations

COVID-19 vaccination advice by Alan Hickey, Service and Operations Director at Peninsula

The rollout of COVID-19 vaccinations will extend to more and more individuals in the months ahead. Surveys suggest that a good majority of workers will take up the offer of the vaccine once it becomes available to them. It appears to be the minority of workers who don’t wish to take the vaccine that concerns employers most, so here we look at some of the most frequently asked vaccine-related questions Peninsula advisors are dealing with.

1. Can I require my employees to have the vaccine?  

The short answer is no; you can’t. The vaccine rollout is a public health operation that employers are not involved in. As matters stand, employers have no legal basis for requiring staff to be vaccinated. Mandatory staff vaccination is loaded with legal risks as there is a conflict between the employer’s duty to provide a safe place of work and the employee’s rights under the Constitution, data protection and employment equality legislation.

It’s also worth noting that the Government has not made it mandatory for citizens to get the vaccine. Furthermore, as a useful comparison, the HSE has not mandated its staff to take the vaccine, which suggests that employers operating in non-healthcare environments will find it difficult to justify a staff mandate to have the vaccine.

2. Do staff have to tell their employer that they have been vaccinated?

Employees have a duty to cooperate with their employer with regard to health and safety at work. Once the vaccine becomes available to the wider workforce, it will be reasonable for employers to ask employees to confirm their vaccination status as part of health and safety management programmes.

If for some reason, an employee refuses to answer this type of question, it will be necessary to engage with the employee to understand their reasoning (they may have data protection concerns, for instance). From a data protection perspective, you can hold data on vaccinations where it is necessary to do so for a specific legitimate purpose. Employers would need to assess this through a Data Protection Impact Assessment, and it wouldn’t be acceptable to hold the data without a justifiable reason for doing so.

3. Is it suitable to ask employees if they are accepting/rejecting the vaccine to assist with planning?

Employers have a duty to ensure that the return to the workplace is safe. Likewise, employees have a duty to cooperate with their employer about health and safety at work. Asking employees what their intentions are regarding the vaccine is a reasonable step to take as part of health and safety management.

4. If an employer encourages staff to be vaccinated, will the employer be responsible for any health issues or side effects because of vaccination?

The vaccines are not commercially available, and employers have no legal basis for requiring staff to be vaccinated. A case of this kind would be decided on its own particular facts, but as employers have no legal basis for mandating staff to take the vaccine, employees should, in theory, find it more difficult to prove that an employer is responsible for any side effects.

Furthermore, the vaccines are being issued through a public process and are administered by qualified and trained healthcare workers, including hospital doctors, community medical officers, nurses, GPs and pharmacists.

5. How can I encourage uptake of the vaccine?

There are no legal obstacles to encouraging staff to take the vaccine or facilitating uptake by providing options like paid time off for their GP visit. At a minimum, employers should provide staff with access to reliable information about the vaccine and highlight the benefits of vaccination in terms of keeping everyone in the workplace safe and healthy.

Developing a vaccine policy is a good way to communicate your position to staff. Such a policy could include your stance on taking the vaccine i.e. whether you encourage employees to take it, how staff concerns will be dealt with, whether you’ll provide paid time off for appointments etc.

6. Can you ask if they have had a vaccination at an interview?

Employment equality legislation covers access to employment, and this type of question could potentially be used against an employer in a discrimination claim. The legislation prohibits discrimination on nine specific grounds.

Employers must avoid asking questions that indicate that the candidate’s characteristics (age, disability or religion, for example) are being identified to determine suitability for the role. A question about vaccination could raise an inference of discrimination and should, therefore, be avoided where possible.

7. What can we do if an employee refuses to return to work as a team member will not take the vaccine?

As matters stand, the vaccine remains one component of a multi-layered approach to health and safety in the workplace. It is also unclear if the vaccine will eliminate the risk of transmission of the virus in the workplace.

In this scenario, try to reassure the reluctant team member that all necessary precautions are being taken in line with health and safety legislation and the Work Safely Protocol.

The existing health and safety measures like social distancing, masks and screens will be in place until the impact of the vaccine on the transmission is better understood.

8. Can I dismiss an employee if they don’t have the vaccine? 

Each case can only be managed based on its own specific facts. There are numerous legal risks to consider; however, before confirming a termination of employment linked to an employee’s decision to refuse the vaccine.

Employees may seek to make unfair dismissal, discrimination or victimisation claims if the employer does not first carefully consider their position and address all such risks. Employers should, therefore, only confirm a decision to dismiss in these circumstances after seeking the advice of an experienced professional.