An information campaign is commencing today to explain to people the benefits of the Covid-19 vaccine. There is a small but vocal minority who, for a variety of reasons, will not be availing of the vaccine.
There are issues which are inevitably going to arise-for example, can an employer force an employee to get the vaccine? The answer to this question is not clear at the moment. There are clearly conflicting rights and obligations on the side of the employer and employee.
Employer’s duty of care
Whilst the employer has a duty of care to provide a safe workplace and has a duty of care to all employees the employee has a constitutional right to bodily integrity and other personal rights.
We encounter conflicts of competing rights in our everyday life. For example, you have a right to freedom of speech and expression whilst I have a right to my good name. These rights will come into conflict if you make statements about me which affect my good name and reputation.
The provision of a safe workplace is a common law obligation but there are also statutory obligations on both employer and employee pursuant to Safety, Health and Welfare at Work 2005. At a minimum, therefore, the employer would have to take positive steps to encourage all employees to avail of the vaccine once available.
It is possible many employers will consider allowing employees who are not vaccinated to work from home to prevent risk of transmission in the workplace. But this may have the effect of providing an incentive for employees not to get the vaccine.
Moreover, it is almost certain that this type of arrangement could lead to dissatisfaction for employees who have been vaccinated and who are obliged to attend the workplace and an adverse impact on employee morale is almost inevitable.
It is quite possible that this type of arrangement may also lead to the employee who has not been vaccinated bringing a claim against the employer on discrimination grounds and different treatment from her colleagues.
The State may attempt to justify mandatory vaccines in the public interest and common good. It is entirely predictable that any such decision will be met with resistance and challenges in the Courts.
Further questions arise in circumstances where an employer insists on his workforce being vaccinated. For example, the employer may well be exposed to liability for any adverse side effects suffered by the employee if he was to insist on vaccination.
And what happens if an employee refuses the vaccine and the employer invokes the disciplinary procedure and dismisses the employee? Will the employee win his/her claim for unfair dismissal?
Perhaps a better route for the employer is to provide information and the vaccine to the employee but leaves it an optional rather than mandatory arrangement in the workplace.
Worldwide approach-what are other countries doing?
Mandatory vaccination is not being introduced in the United Kingdom. An employer may decide, however, that it is a necessary requirement in a particular job-for example if overseas travel was required.
It is not mandatory in Germany, either, but German employers can give a vaccination bonus to employees who obtain it. The question of discrimination on this head does not arise because the different treatment can be justified on the grounds of efficiency, cost savings, and other reasons. For example, the employer should incur less sick pay and have a safer workplace the more employees are vaccinated.
Data protection
An employer is entitled to process employee’s data if there is a legal obligation to do so, if it is in the public interest, or if it is in the legitimate interests of the employer. On these grounds the employer can argue that the measures being taken are necessary and proportionate and will rely on Article 9 of the GDPR.
Article 9 of GDPR states:
Processing of special categories of personal data
- Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.
- Paragraph 1 shall not apply if one of the following applies:
- the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject;
- processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law in so far as it is authorised by Union or Member State law or a collective agreement pursuant to Member State law providing for appropriate safeguards for the fundamental rights and the interests of the data subject;
- processing is necessary to protect the vital interests of the data subject or of another natural person where the data subject is physically or legally incapable of giving consent;
- processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other not-for-profit body with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data are not disclosed outside that body without the consent of the data subjects;
- processing relates to personal data which are manifestly made public by the data subject;
- processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity;
- processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject;
- processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3;
- processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, on the basis of Union or Member State law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy;
- processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) based on Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.
- Personal data referred to in paragraph 1 may be processed for the purposes referred to in point (h) of paragraph 2 when those data are processed by or under the responsibility of a professional subject to the obligation of professional secrecy under Union or Member State law or rules established by national competent bodies or by another person also subject to an obligation of secrecy under Union or Member State law or rules established by national competent bodies.
- Member States may maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health.
Mandatory vaccinations in the workplace
At the moment (8th May 2021) there is no legal obligation on an employee to be vaccinated.
Vaccination in Ireland is voluntary, and this has been the case for many decades in relation to other vaccination programmes in Ireland.
There are conflicting rights and obligations between the employer who has a duty of care to provide a safe place of work, an employee’s right to bodily integrity and personal rights flowing from the constitution and the European Convention of Human Rights, and the rights of society generally to be protected from the spread of a virus which has cost so many lives.
Employers and employees need to be aware of the Work Safely Protocol issued in May 2021.
Qualification of rights
Rights are not absolute, however, and the right to respect for “his private and family life, his home..” is qualified to a certain extent insofar as is necessary “in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime or the protection of health or morals, or for the protection of the rights and freedoms of others” (Source: European Convention on Human Rights).
Recently, we had the decision from the European Court of Human Rights which held that the compulsory vaccination of children was legal and sometimes necessary in a democratic society. Read about AVŘIČKA AND OTHERS v. THE CZECH REPUBLIC (Applications nos. 47621/13 and 5 others) here. This decision will provide support to any attempt by a country to introduce compulsory vaccination in order to achieve herd immunity in its population.
It will also provide support to an employer who may be insisting that employees be vaccinated to enter the workplace. The considerations of the employer will be similar to those of the State but will not be identical and particular employers, depending on the work they are engaged in, may insist on workers being vaccinated for the provision of a safe workplace and to allow the employer to discharge his statutory and common law obligations concerning a safe workplace.
Insisting on vaccination is a complex issue, however, touching upon all sorts of rights including data privacy rights. For example, can an employer even ask an employee if he/she has been vaccinated or not? Is there GDPR considerations in this question? Probably.
It seems clear that there will be no one size fits all approach for employers and each workplace will have to be assessed on its own particular facts. Risk assessment in the context of a workplace would be a key factor in any decision an employer takes about insisting on vaccinations, disciplining employees who refuse to be vaccinated, and transferring employees to other work locations.
One thing is certain: employer would need to think long and hard before dismissing an employee for the absence of a vaccination. Employers need to look at alternatives to mandatory vaccination such as air sanitation systems, mandatory testing, and any other steps that can be taken short of insisting on vaccination.
Proportionality
Even when there is justification for interference in a citizen’s personal right the steps taken must be proportional to the legitimate objective. The control of public diseases and safeguarding of public health will provide a justification for interference in personal rights, as has happened in Ireland, and the European Court of Human Rights has held this to be the case in many of its decisions.
Conclusion
It is almost inevitable that there will be disputes between employer and employee in regarding the Covid 19 vaccination. It is not an area with settled law and will need to be navigated carefully with common sense, cool heads and adherence to the best public health advice available.
Hopefully in the not-too-distant future we will be looking back and wondering what all the fuss was about.