Many employers are frustrated by the legal advice that they are not permitted to enquire about the vaccination status of their employees. This is the legal position, and it arises from a couple of sources:
- The Office of the Data Protection commissioner has indicated that this type of data, being health data, is in a special category of data and the imbalance between employer (data controller) and employee (data subject) in the workplace. Refer to Processing COVID-19 Vaccination Data in the context of employment
- Bunreacht na hÉireann (the constitution of Ireland) provides constitutional protection to bodily integrity
- Vaccination in Ireland is voluntary and a not a necessary health and safety measure in the workplace, unless there is a compelling justification for it in a particular workplace
If an employer was to find out accidentally or inadvertently that an employee was not vaccinated, he cannot act on this information for he may leave himself open to employment claims from the employee for either discrimination or constructive dismissal.
Employers should focus on implementing the work safely protocol available from the Department of Enterprise, Trade and Employment. They should also carry out risk assessments of the workplace and work practices and review use of premises and buildings, staggered starts to work, working during lunch or staggering times, training in respect of health and safety measures, changing terms of employment, clear communication regarding the ending of layoffs, etc.
Employers should also keep abreast of the HSE website which provides flowcharts and other information regarding positive cases, close contacts, suspected cases, and so on. They will need to review their pay policy for employees who are out or are in isolation/quarantine.
With regard to wearing masks in the workplace the advice is to follow the guidance from the relevant government department and the HSE and have regard to recommendations from a health and safety consultant who should carry out a risk assessment in the workplace. An employee refusing to wear a mask will need a good reason, but empathy and understanding is strongly advised in respect of employees who have a medical reason for not wearing a mask.
If the employee does not have a reason for refusing to wear a mask, and there is a health and safety advisory to wear one in the particular workplace, it will become a disciplinary matter.
Employers need to consider their stance as to hybrid working and working from home. The first step is to formulate a policy for remote working. It may then be necessary to engage and consult with employees and amend the contracts of employment thereafter.
Employers need to pay close attention to the advisory information provided by the various government departments and the HSE. It is advisable to designate one employee who will keep the various sources of information under close review for changes, which are happening with great frequency.