Vaccinations within the WorkplacePosted in : HR Updates ROI on 13 May 2021
The Coronavirus Vaccination roll out will bring a lot of positives to people’s daily lives, but what does it mean for employers within the workplace - will it be a requirement, what policies should be considered and what are the legal implications? Many questions are being asked about the process for the vaccination roll out and hopefully this article will shine a light on these questions and give Employers a better understanding.
One question employers are asking is can they request that their employees are fully vaccinated before they come back into the workplace. The answer is simply - no they can’t. There is currently no legislation in force that makes the vaccination in any kind mandatory and state-operated vaccine programmes have always been provided on a volunteer basis. There has been no indication either that the government intends to introduce such a programme for Covid-19 vaccinations and no guidance has been issued to suggest that an employer could require an employee to get a vaccine even if the employer believes it is a necessary requirement for the employee’s job. If an employer were to require an employee to get the vaccine, it would leave a strong risk of any decision being challenged by the employee who for whatever reason does not want to or has been medically advised not to take the vaccine.
An employer should be cautious of making any rash decisions like making a ban for employees not taking the vaccine, even if in the employers view it is for the safety of the business. The reason for this is because the employees in question could be advised medically that due to a pre-existing disability, taking the vaccine might have a negative effect on their mental health or it might go against their religious beliefs. If there were sanctions in place for employees not taking the vaccine such as not allowing them to come into work, the business could face costly discrimination claims.
Maintaining a Healthy and Safe Workplace
The next challenger for employers is trying to figure out what policies are needed to keep everyone feeling safe. Employers have the difficult situation with updating their policies to deal with scenarios where there would be a mix of employees who have not received the vaccine and those who have. It is important for employers to remember that their statutory obligation towards the employees as regards to health and safety matters.
Employers must keep their risk assessments and safety statements under constant review to make sure they continue to identify and address hazards relevant to their employees work environments, including those working from home. An important note for employers to consider is whether they are going to continue with employees working from home, returning the employees to the office when it is possible, or to provide a hybrid of home and office work. Finally, the employers should reexamine and update their data protection policies and notices as necessary to ensure they address processing of personal data relating to health matters, such as the vaccinations.
It is advisable for employers to approach vaccinations policies with caution. Vaccination policies should include an overview of the benefits associated with receiving the vaccine but not penalizing any employee who doesn’t want to get the vaccine. Employers can facilitate authorized time off in this policy for employees to attend their vaccine appointment so any employee isn’t afraid to ask for the time off. The Work Safety Protocol indicates that employers must ensure that their risk assessments and safety statements under health and safety legalization are updated as part of the employer’s Covid-19 response plan.
Data Protection Considerations
Data protection should be a huge focus point to be addressed in the vaccination process. The employer of course will be keen to confirm whether their employees have or have not received the vaccine, but the employer’s duties under the data protection legislation remains the same. Employers are obliged to keep employee’s personal data confidential and that data concerning health is only processed when there is an appropriate legal basis. The Data Protection Commission has guidelines that clarified that GDPR provides a legal basis for processing health data when that data is necessary and proportionate. The employer should make sure the legal bases for processing the data is clearly explained in their vaccination policy. In some employment settings employers may request employees to state if they have received the vaccine or not, but only in a high risk setting such as a hospital or care homes but not limited to. This should be carefully considered by employers.
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The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.